Werborn v. Austin

• Decision Date: 07 May 1884
• Citation: 8 So. 280,82 Ala. 498
• Parties: WERBORN v. AUSTIN. [1]
• Court: Alabama Supreme Court

8 So. 280

82 Ala. 498

WERBORN v. AUSTIN. ^[1]

Supreme Court of Alabama

May 7, 1884

Appeal from chancery court, Mobile county; JOHN A. FOSTER, Judge.

This bill was filed in 1884 by Adolpha M. Austin against Amanda M Pinney, her mother, and George F. Werborn, the executor and trustee under the will of Adolpha M. Solomon, her father, who died in 1862. The bill prayed for an accounting and settlement by the executor and trustee. There was a decree for the complainant, and Werborn appealed. For former report see Werborn v. Austin, 77 Ala. 381. See, also Pinney v. Werborn, 72 Ala. 48.

F G. Bromberg, for appellant.

Pillans, Torrey & Hanaw, for appellee.

STONE C.J.

The only amendment of the bill of which the record gives notice was the addition of the name of Hiram S. Austin, as co-complainant with Adolpha M. Austin, his wife, who was made sole complainant in the original bill. Whatever may have been the extent of the amendment, it appears to have been made on the face of the original bill by interlineation with ink of a different color. In such case, a foot-note has no office to perform, and its omission furnishes no ground of demurrer. The present bill was filed in 1884, about six months after the meritorious complainant became of age. Three years before that time, in 1881, Werborn came to an informal settlement in the probate court, in which he charged himself with assets which had come to his hands, and claimed and obtained credit for disbursements he had made. This was a recognition that the trust was then continuing, and intercepts the presumption of payment, which the law, in the absence of recognition, raises at the expiration of 20 years. Austin v. Jordan, 35 Ala. 642; McArthur v. Carrie, 32 Ala. 75; Blackwell v. Blackwell, 33 Ala. 57; Harrison v. Heflin, 54 Ala. 552; Garrett v. Garrett, 69 Ala. 429; Whetstone v. Whetstone, 75 Ala. 495.

The defendant Werborn interposed a plea of res adjudicata in the court below, of which the record furnishes no evidence of formal disposition. The plea is fatally bad, and should have been so pronounced on demurrer or on motion to reject it as frivolous. One of the points it seeks to make is that a settlement of the administration was had in the probate court, a balance ascertained and decreed to Mrs. Pinney, which Werborn has paid, and that more than 10 years had elapsed after such decree when this bill was filed. A complete answer to this is that the complainant in this suit. Adolpha, was no party to that proceeding, and, consequently, could not be concluded by it. Both the bill and the plea show that she sought to propound her rights, and have them passed on in that settlement, but, at the instance of Werborn, she was denied the right to appear in that settlement, or to have her interests considered. It was res inter alios acta, and cannot affect Mrs. Austin's rights in this suit. Tennessee, etc., R. Co. v. East Ala. Ry. Co., 75 Ala. 516; Cain v. Sheets, 77 Ala. 492; Walker v. Elledge, 65...