Henry v. Henry

• Decision Date: 20 June 1894
• Citation: 15 So. 916,103 Ala. 582
• Parties: HENRY v. HENRY ET AL.
• Court: Alabama Supreme Court

15 So. 916

103 Ala. 582

HENRY v. HENRY ET AL.

Supreme Court of Alabama

June 20, 1894

Appeal from chancery court, Mobile county; W. H. Taylor, Chancellor.

Action by Thomas J. Henry against Mary Henry, executrix of the estate of Thomas Henry, deceased, and others, to recover a legacy, and for an accounting. From the decree rendered complainant appeals. Affirmed.

On May 18, 1891, the appellant, Thomas J. Henry, filed the bill in this case against John Henry, Mary Ellen Ruffin, Frank G Ruffin, Jr., her husband, and Mary Henry, the executrix of the estate of Thomas Henry, deceased. The prayer of the bill was that the chancery court would take jurisdiction of the administration of the estate of Thomas Henry, deceased, and that Mary Henry, as executrix of the estate of said Thomas Henry, deceased, be decreed to pay to the complainant the legacy bequeathed to him by the will of the decedent, and, if necessary to enforce the payment thereof, that the lands of the estate be decreed to be sold. The material allegations of the bill, and the grounds of relief prayed for, are sufficiently stated in the opinion.

On May 21, 1891, the complainant filed his petition for the appointment of a receiver for the estate of Thomas Henry deceased; and on May 26, 1891,-all of the defendants joining in such petition, and consenting, in writing, that Thomas J Henry be appointed such receiver,-the following order was made, appointing the said Thomas J. Henry as receiver, and conferring the following powers and duties upon him: "It is ordered that Thomas J. Henry be and is hereby appointed receiver, to collect, by suit or otherwise, and receive, the rents, incomes, and profits of the real estate of the estate of Thomas Henry, deceased, and to receive and collect, by suit or otherwise, and get in, the personal estate belonging to said estate, pending this action. (2) That all deeds books, and documents now in the possession of the defendants, and belonging to the real and personal estate of said Henry, deceased, shall be delivered over to the receiver so appointed, so that the same may be deposited in this court for the purpose of enabling such person or persons to refer to and use the same as may be necessary. (3) And it is further ordered that said receiver shall collect and get in all outstanding debts or monies due to said estate, and to take into possession all notes and drafts or bills of exchange due and owing to said estate, and that all the personal property belonging to said estate may be sold and converted into money by said receiver, by and under the direction of this court. (4) That said receiver shall give bond in the penal sum of five thousand dollars, with sufficient securities, to be approved by the register of this court, conditioned upon the faithful performance of his duties as receiver. (5) That the said compensation of said receiver shall be $100 per month, payable monthly out of whatever moneys he may have in hand, and that the said receiver may, by proper order of this court, pay monthly, a reasonable amount of money to Mary Henry, executrix, for the proper support and maintenance of herself and household, and the said receiver may also, upon the proper order of this court, pay monthly to the said John Henry a proper amount of money for his personal support and sustenance, to be paid for his personal services rendered the estate, the said payments to be made and continued pending this litigation. (6) That said receiver shall forthwith prepare and file in this court a schedule of all the indebtedness of said estate, whether the same be secured by mortgage or not, and he shall also file in this court an inventory of all the property, both real and personal, belonging to said estate, whether the same be pledged to secure debts or not; and he shall take such steps as are necessary for an early winding up of the business, of every character, of the estate of the late Thomas Henry, deceased. (7) And it is further ordered that said receiver, from time to time, make report to the court of all his doings in this behalf, and that either of the parties to said cause, or said receiver, shall be at liberty to apply to the court, from time to time, for such further order or direction as may be necessary, and said receiver shall, upon filing his bond in this court, enter at once into the possession of the real property of the said estate, and notify all the tenants of said estate of his authority, and shall cause to be published a notice of his appointment in some newspaper published in Mobile county. (8) That the said receiver shall have power to dissolve the firm of Thomas Henry & Son, and wind up the affairs of the said firm, and shall protect the interest of the estate of said firm, and shall have power to bring suit, if necessary for the protection of the interests of said estate in said firm, and he shall also have authority to pay taxes due on the real and personal estate belonging to said estate. And, until it is sold or disposed of, he shall keep all the property of said estate insured in good and solvent companies, and shall cause to be made all necessary repairs to the property of said estate."

On June 1, 1891, the court rendered a decree assuming jurisdiction of the estate. On June 13, 1891, by consent of all the parties, a decree was rendered calling in all the claims against the firm of Thomas Henry & Son and against the estate of Thomas Henry, deceased; and it was ordered in said decree that all claims not filed with the register within the time allowed would be barred, and all parties in interest were given a right to file exceptions to any claims filed, and the register was directed to "ascertain the valid, subsisting claims against the said firm and said estate, the amount of the principal of each claim, and the interest on each one to the date of reference, and the date from which each bears interest." Among the claims filed under this last decree was one of John Henry, one of the defendants. There were objections to this claim interposed by the said Thomas J. Henry, individually and as receiver, and the claim was withdrawn. The report of the register of claims, filed against said estate, included the claims of Thomas J. Henry and Mary Ellen Ruffin for their legacies under the will, of $1,000 each. This report allowed no interest on said legacies, and gave no date from which interest could be computed. No exceptions were filed to this report, and it was duly confirmed by the chancellor on September 17, 1891.

In response to a motion by the receiver, filed June 15, 1891, the following order was made on June 17, 1891, enlarging the powers of the receiver: "This cause came on to be heard before the register of this court on Monday, June 15, A. D. 1891, after due notice, and was continued from day to day until this, the 17th day of June, A. D. 1891; and now coming on to be heard before the register of this court on an application to enlarge the powers and authority of the receiver heretofore appointed in this cause, and all the parties to this cause consenting that said application be granted, it is ordered, adjudged, and decreed that the receiver, Thomas J. Henry, have full power and authority to sell and dispose of, as rapidly as possible, all the personal property belonging to the firm of Thomas Henry & Son, and to collect and realize, as fully as possible, upon all the rights, debts, and demands due the said firm of Thomas Henry & Son. (2) To settle, upon such terms and conditions as in his judgment may be to the best interests of all parties interested in this cause, all debts, claims, rights, and demands that may come into his hands as receiver, the collection of which may be or become doubtful; have full power and authority to accept, in payment or compromise of all such debts, claims, or demands, property, real or personal, whenever it may be to the best interest of all concerned. (3) To employ, at the expense of the parties in interest, such agents, clerks, and attorneys as it may be or become necessary for him to employ in order to properly manage the trust confided to him, and to advise him as to his rights and duties in regard thereto. (4) To allow the said receiver to have power to do all other acts that may be necessary to enable him to take possession of the property, and to enforce and collect the rights and debts due the estate of Thomas Henry, deceased, and to collect and enforce the rights and debts due the firm of Thomas Henry & Son. (5) To allow him to spend such sum or sums of money as in his judgment may be necessary, having a due regard to economy, in advertising for sale, in newspapers and otherwise, the goods, wares, merchandise, and other property of the firm of Thomas Henry & Son. (6) To allow the receiver to employ, at as early a date as possible, an expert accountant, for the purpose of ascertaining the exact interest of John Henry in the firm of Thomas Henry & Son, in order that the receiver may submit to this court at the proper time a balance sheet showing the account of each partner in said firm."

On October 7, 1891, the chancellor confirmed the report of the register as to the necessity for a sale of the real estate of the estate of Thomas Henry, deceased, and ordered that the same be sold. On November 13, 1891, a decree was rendered ordering the receiver to file his account and vouchers for a final settlement of his receivership. On December 1, 1891 Mary Henry filed her petition, alleging that she had paid all of the debts for which her property was to be sold, and asked a rescission of the order of sale made October 7, 1891, and that her property be restored to her, together with the leases, insurance policies, etc., relating thereto. The said Mary Henry also filed on December 24, 1891, a...