Rives v. Morris

• Decision Date: 17 December 1895
• Citation: 108 Ala. 527,18 So. 743
• Parties: RIVES ET AL. v. MORRIS ET AL.
• Court: Alabama Supreme Court

18 So. 743

108 Ala. 527

RIVES ET AL. v. MORRIS ET AL.

Supreme Court of Alabama

December 17, 1895

Appeal from chancery court, Montgomery county; Jere N. Williams Chancellor.

Bill by Mary W. Rives and others against Josiah Morris and another sureties on the bond of George Holmes, deceased, for an accounting. The bill was dismissed, and complainants appeal. Affirmed.

David T. Blakey and W. A. Gunter, for appellants.

Tompkins & Troy, for appellees.

McCLELLAN J.

The bill in this case is exhibited by Mary W. Rives, S. L Alexander, and the children of said Alexander by Annie Alexander, formerly Annie Bunting, against Josiah Morris and William C. Ray, as sureties on the bond of George Holmes as executor of the last will and testament of Henry Holmes deceased. The complainants are, or stand in succession to, original devisees and legatees named in said will; and they are also the heirs at law of Anna Holmes, who was the wife of said Henry, and survived him for a number of years, and who was also a legatee under his will. The object of the bill is to have an accounting and settlement by said sureties, the executor having died, of George Holmes' administration of the estate of the testator, both in respect of the direct interests of the complainants therein, and also in respect of the legacies to Anna Holmes, to whose rights they have succeeded as her heirs at law. There were demurrers, pleas, and answers by the respondents; testimony was taken; the cause was submitted for final decree on the evidence, as also upon a motion to dismiss the bill for want of equity; and at the hearing the bill was dismissed. From that decree this appeal is prosecuted.

The case thus presented for our review may be further summarized as follows: Henry Holmes died in 1866, leaving a considerable estate, all of which he disposed of by will to his widow, Anna Holmes, his son, George Holmes, his daughter, Mary W. Rives, and his granddaughter, Annie Bunting. The latter afterwards married S. L. Alexander, one of the complainants, and became by him the mother of the minor complainants, and died before the commencement of this suit. To Mrs. Anna Holmes the testator devised and bequeathed a life estate in certain lands, a large amount of personal property, and $20,000 in money. To Mrs. Rives he gave $12,000 in money, $5,000 in the stock of a railway company, lands, and chattels. To his granddaughter he devised certain lands. To George he devised the remainder in the land devised to Mrs. Holmes for life. And then made his son and daughter and granddaughter his residuary devisees and legatees, the latter receiving one-fourth, and the first two referred to each receiving one-half of the remaining three-fourths of the estate. George was named as executor, and qualified as such early in the year 1867,-Mrs. Anna Holmes and the defendants, Josiah Morris and William C. Ray, becoming sureties on his bond in the sum of $270,000,-and entered upon the execution of the will. It is shown that he made a partial settlement of the estate in the probate court on November 30, 1875, when he had received of the assets of the estate the sum of $71,489.78, and had paid out the sum of $4,733.50, leaving a balance then in his hands of $66,756.28. It does not appear that any subsequent, or indeed any other, settlement was made in the probate court. It is shown affirmatively that he paid the pecuniary legacies, amounting to $12,000, to Mrs. Rives in full during the years from 1869 to 1877, and that in 1875-76 he paid to S. L. Alexander, as husband and trustee of Annie Alexander, née Bunting, out of the estate, $17,682.50. There is evidence of statements and admissions on the parts of both Mrs. Rives and S. L. Alexander that the executor had settled in full with them for the interests owned or represented by them in the estate. Alexander, himself a complainant in the present bill, is not examined as a witness to deny these admissions, or to gainsay their truth, and Mrs. Rives, who was examined, testified that she "did not know whether she had ever received her full share of her father's estate or not." Mrs. Anna Holmes, who only, besides George, knew whether the latter had settled with her, or to what extent he had failed to do so, died in 1885; George, who knew all the facts, died in 1889, shortly before the filing of this bill; and Mrs. Alexander, who, it is to be presumed, knew whether the executor had fully settled with her, died in 1890, only a few months before the filing of this bill. There is evidence that the sureties were given to understand years ago that the estate had been settled, and it is not to be presumed that they knew personally whether it had been or not, or the state of the accounts. One of them, Josiah Morris, has died since the bill was filed. The bill was filed August 20, 1890.

The demand made by the bill for an accounting and settlement is not barred by any statute of limitations. Nor has it passed under the ban of the doctrine of prescription in consequence of the lapse of 20 years, for it was not 20 years from the date of the partial settlement in the probate court to time of bill filed. Nor, indeed, has the mere delay in bringing forward the demand, in and of itself, been sufficient to render it a stale demand. But, in our opinion, the delay; the circumstances attending and characterizing it; the altered conditions surrounding the parties at the time of bill filed and now, and the consequent uncertainty that the court will ever be able to decree a just accounting; the uncertainty which can now never be satisfactorily resolved, whether, indeed, there have not been full settlements with all parties interested; the great and manifest danger that, if this matter were now opened up, and the sureties, who are wholly ignorant of the accounts, should be put to an accounting, with no living person cognizant of the real facts...