Stovall v. Clay

• Decision Date: 12 November 1895
• Citation: 108 Ala. 105,20 So. 387
• Parties: STOVALL ET AL. v. CLAY ET AL.
• Court: Alabama Supreme Court

20 So. 387

108 Ala. 105

STOVALL ET AL. v. CLAY ET AL.

Supreme Court of Alabama

November 12, 1895

Appeal from chancery court, Jackson county; Thomas Cobbs Chancellor.

Bill by William H. Stovall and others, administrators, against M. A Clay and others, for certain aid in the settlement of the estate of R. W. Clay, deceased. The bill in this cause was filed on the 20th day of July, 1893, and the case made thereby is substantially as follows: At some time during the year 1870, or 1871, the exact time not stated, Russell W Clay and the defendant, M. A. Clay, formed a mercantile partnership under the firm name of R. W. & M. A. Clay, which continued until the year 1879, when presumably, though there was no express averment to that effect, the partnership was dissolved and ceased business. It is not shown that the partnership existed after the year 1879, nor is any act of either party in recognition of the partnership, as in settlement thereof, after that time, averred. It is not averred whether or not there was ever any settlement of the partnership, but it may be conceded, that the fair intendment from the averments of the bill is, that no such settlement was ever made. All the capital of the partnership, it is averred, was owned by Russell W. Clay, M. A. Clay having invested no money and having owned no estate in the partnership. The terms of the partnership are not given. In addition to carrying on their regular business, the firm loaned money and took mortgages to secure the same, and also purchased real estate, investing in such adventure a large sum of money, the property of R. W. Clay. And it is charged M. A. Clay collected and retained for his own use the amounts secured by the said mortgages. When such collections were made is not stated. Russell W. Clay died intestate in December, 1886, leaving him surviving his widow, Matilda Clay, who died in 1892, and several children, all of whom are made parties defendant, and are averred to be over the age of 21 years. After the death of Russell W. Clay, M. A. Clay, as it is further alleged, took possession of the entire estate of the former, both real and personal, collected the debts due the estate, and the debts due the firm of R. W. & M. A Clay, and used the entire property and estate of said decedent as his own. He took mortgages in his own name securing debts due the estate of Russell W. Clay or to the firm of R. W. & M. A. Clay, and in that way and by receiving real estate which was conveyed to him in payment of debts due the said firm of R. W. & M. A. Clay, and due the said Russell W. Clay, he became gradually seised and possessed of the entire estate of the said Russell W. Clay. It is further averred that before the death of Russell W. Clay, M. A. Clay acted as the agent of the former and had general charge of his business, and frequently took mortgages in his own name when they were given to secure debts to Russell W. Clay, or to R. W. & M. A. Clay and by this means, and by continuing after the death of Russell W. Clay to take mortgages in his own name for debts which were properly the property of the estate of Russell W. Clay, the said M. A. Clay succeeded in obtaining the apparent legal title to a large number of debts and claims, which belonged to said estate. A list of the mortgages so taken by him, and which are really the property of the estate of Russell W. Clay, is exhibited with the bill, and this list purports to show the names of the mortgagors, the amount secured by such mortgages, and the date of each mortgage. That list then describes 23 mortgages on real estate, securing various amounts of indebtedness. Sixteen of these mortgages were executed before the death of Russell W. Clay, one is without date, one in the year 1887, two in the year 1889, one in the year 1890, and two in the year 1891. It is also averred that in like manner, and upon a similar consideration, he, M. A. Clay, took and received a number of chattel mortgages, a list of which is also exhibited with the bill, showing the names of the mortgagors, the amount secured by and the date of the mortgage. The list shows 12 of such mortgages, of which all were executed prior to the death of Russell W. Clay, and the other on the 27th day of January, 1887. It is also averred in this connection, that the complainants do not know and cannot ascertain the amount of interest and principal which the said M. A. Clay has collected upon said mortgages upon said real estate and personal property. As is further averred: M. A. Clay, has sold parts of the real estate to which he obtained the legal title as before stated, and has received from said sales amount exceeding $5,000, and a list of such sales is exhibited with the bill purporting to show the persons to whom such sales were made, the description of the property sold, the consideration and dates of sales. This list purports to show nine of such sales, four of which antedate the death of Russell W. Clay, two are dated in 1887, one in 1888 and two in 1890. It is also averred that by the means described in this bill and by using the moneys belonging to the estate of said decedent, the said M. A. Clay obtained the legal title to several tracts of real estate. A list is also exhibited with the bill purporting to give a description of the vendors and the dates of the deeds. This exhibit shows fifteen of such deeds, and that ten of them were executed prior to the death of Russell W. Clay, two in December, 1886. Whether before or after his father's death, is now shown, and the other three in 1890. The purchase money for all these tracts of land, it is averred in general terms, was the property of Russell W. Clay as the property of his estate, and that said real estate is, in equity, the property of the estate of Russell W. Clay. Said M. A. Clay is in possession of said real estate. It is further averred that since the date of the deeds to M. A. Clay, he has collected the rents amounting to more than $5,000 per annum, and said rents are the property of said estate; that said M. A. Clay has also obtained a large amount of money and personal property, notes, accounts and mortgages, and lands of which there is no record evidence, and which, for want of definite information, complainants are unable to describe with more definiteness; all of which property belonged to the estate of Russell W. Clay. It is further averred in the bill that Russell W. Clay, at the time of his death, owed but few debts, all of which have been paid; that the complainants were appointed the administrators of his estate on the 16th day of May, 1893, prior to which time no letters of administration upon said estate had been granted, that no property had come into the hands of the administration, but that the entire estate of the decedent is now in the hands of the said M. A. Clay; that the said M. A. Clay has invested part of the corpus of said estate in government and state bonds, but the amount so invested is not known to complainants; that he has, from year to year, since the death of Russell W. Clay, collected rents upon real estate belonging to said estate, and interest upon money belonging to said estate, and now retains the same in his possession; that he has, from time to time, since the death of Russell W. Clay, promised his sisters, the daughters of Russell W. Clay, that he would give them a full share of their father's estate after the death of their mother, Matilda Clay; but that since her death he refused to make any settlement of the estate of Russell W. Clay and now claims the entire estate as his own. It is further alleged that the probate court of Jackson county has not acquired jurisdiction of the administration of the estate of said decedent and that nothing more has been done in said court than to grant letters of administration to complainants on their petition, and to qualify complainants as such administrators. It is further alleged that the accounts between the estate of said Russell W. Clay and the defendant M. A. Clay growing out of the said partnership, and out of the said agency, and out of the management on the part of said M. A. Clay of the estate of said decedent are so complicated that the jurisdiction and aid of the chancery court are necessary to a proper and equitable settlement; that a settlement of said accounts will necessarily involve a settlement of the estate of said decedent. That M. A. Clay was one of the children of said decedent and entitled to share in the distribution of his estate, but that, on a fair settlement between said estate and himself, he would be indebted to said estate in a sum exceeding $100,000. By an amendment allowed and filed on the 3d day of April, 1894, the following averments are added: After the death of said Russell W. Clay, said M. A. Clay continued to hold and manage the assets of the said firm of R. W. & M. A. Clay, recognizing that he held the same as agent and in trust for said estate of Russell W. Clay, deceased, and in each and every year from...