Moore v. Esslinger

• Decision Date: 19 March 1936
• Docket Number: 715,8 Div. 706
• Citation: 232 Ala. 251,167 So. 328
• Parties: MOORE et al. v. ESSLINGER et al. MARYLAND CASUALTY CO. et al. v. MOORE et al.
• Court: Alabama Supreme Court

167 So. 328

232 Ala. 251

MOORE et al. v. ESSLINGER et al.

MARYLAND CASUALTY CO. et al. v. MOORE et al.

8 Div. 706, 715

Supreme Court of Alabama

March 19, 1936

Rehearing Denied April 23, 1936

Appeal from Circuit Court, Madison County; Paul Speake, Judge.

Administration of the estate of Nelson Sowell deceased having been removed from the probate court, to the circuit court in equity Francis Esslinger, as administrator, filed his account on final settlement and Ida Moore and Camilla Roland filed objections. From the decree contestants appeal and apply for alternative writ of mandamus, and the administrator and surety on his bond, Maryland Casualty Company, cross-assign errors.

Corrected and affirmed, and mandamus granted conditionally.

See also, 164 So. 210.

Taylor Richardson & Sparkman, of Huntsville, for appellants.

W.F. Esslinger and Francis Esslinger, both of Huntsville, for appellee Esslinger.

Cooper & Cooper, of Huntsville, for appellee Maryland Casualty Co.

THOMAS Justice.

The appeals by parties in interest and cross-assignments of error seek a review of a decree of distribution of funds of the estate of decedent on final settlement.

Francis Esslinger was appointed administrator of Nelson Sowell's estate on December 24, 1932, with appellee, Maryland Casualty Company, as surety on his bond as such personal representative.

On March 9, 1935, the administration was removed from the probate court of Madison county to the circuit court, in equity, and the administrator ordered to file his accounts and vouchers for a final settlement. On the same date a decree was rendered declaring that Ida Moore and Camilla Roland were heirs at law of the said Nelson Sowell, deceased.

When the administrator filed his accounts and vouchers for final settlement, March 14, 1935, the appellants took exceptions thereto, and notice issued to Maryland Casualty Company as surety.

The accounts for final settlement were amended, and on the same day Maryland Casualty Company filed an answer to the exceptions and objections of Ida Moore and Camilla Roland.

The hearing on July 6, 1935, was on testimony taken orally in open court; and the final decree was rendered on issues raised by the pleading. That decree, on motion, was amended and corrected on July 17, 1935. The testimony in support of the motion on which the amendment was made was likewise heard in open court and upon the affidavit of W.L. Howard.

The decree of July 6, 1935, and the amended decree of July 27, 1935, were both, among other things, in favor of appellants for their distributive shares of the estate of Nelson Sowell.

That part of the decree of July 6, 1935, in favor of the appellants reads as follows: "*** and that Ida Moore and Camilla Roland have and recover of said Francis Esslinger, individually and as administrator of the estate of Nelson Sowell, deceased, and of said Maryland Casualty Company, the remainder of said sum of $4860.34 after deducting said sums above mentioned; and that this cause be retained on the docket of this court for further orders, and that no execution issue on this judgment or decree against said Esslinger or the surety on his bond until further orders; and that the parties in favor of whom this decree is rendered have such process by garnishment or otherwise as may enable them to collect from the Tennessee Valley Bank or its Liquidating Agent the amount remaining due on said deposits."

And that part of the decree of July 17, 1935, favorable to appellants was: "*** that Ida Moore and Camilla Roland, separately and severally, have and recover of said Francis Esslinger, individually and as Administrator of the estate of said Nelson Sowell, deceased, and of said Maryland Casualty Company, the surety on his bond, one-half of the remainder of said sum of $4860.34, after deducting therefrom the sums above mentioned, (but that no execution issue on this judgment or decree until it shall be ascertained what loss [if any] results by reason of the deposit of said sum in the Tennessee Valley Bank, subject to joint control, or until further orders of this Court; and that the parties in favor of whom this decree is rendered have such process by garnishment or otherwise as may enable them to collect from the Tennessee Valley Bank or its Liquidating Agent the amount remaining due on said deposits)."

The only assets of the estate were the moneys collected by the administrator as proceeds of a war risk insurance policy, and deposited in the Tennessee Valley Bank on February 15, 1933, to the credit of "Francis Esslinger, Admr. Est. of Nelson Sowell. *** Checks to be countersigned by R.L. Adair." The court found from the evidence and held that the deposit was subject to "joint control" of the administrator and the surety on his bond as such personal representative.

The courts take judicial knowledge of the moratorium. King v. Porter, 230 Ala. 112, 160 So. 101.

The bank of deposit closed its doors on March 5, 1933, at a time when substantially all of the money in question was on deposit; never reopened, and was later placed in the hands of the superintendent of banks for liquidation.

The affidavit of W.L. Howard gives the proper mode of liquidation, as an officer of that bank.

The appellants assign as error, the action of the court in suspending or limiting their immediate "right to execution or other process for the enforcement of the decree" for the respective amounts found due appellants as distributees. This right and alleged error, appellants present by appeal, and in the alternative, by petition for mandamus, which may be held or declared to be the proper remedy.

The petition for mandamus was filed and submitted with the record on appeal. We will consider the questions thus presented.

Appellees and cross-appellants, Francis Esslinger, individually and as administrator of said estate, and Maryland Casualty Company, as surety on the administrator's bond, appeal and assign errors in the respects to be indicated below.

As we have indicated, the hearing was before the trial court and rested partially and in material respects on oral testimony. The rule of presumption in favor of findings of fact by the trial court prevails. Andrews et al. v. Grey, 199 Ala. 152, 74 So. 62. We have...