
    Whorton, Ex’r v. Moragne et als.
    
    
      Settlement of an Administration.
    
    1. A court of equity, in the absence of peculiar facts, will not arrest proceedings in a court of probate.—A court of equity -will not, at the instance of an administrator or executor, arrest proceedings commenced in a court of probate, for a final settlement of an administration, unless some specific fact or circumstance is shown, which renders the limited power of that court inadequate to a full and complete settlement of the trusts of the administration.
    2. When a bill is dismissed prematurely, nothing but its equity will be considered.—When a bill is dismissed for want of equity before the cause was in condition to be heard on its merits, the appellate court w#l decide no other question than the equity of the bill, because no other was submitted to, and passed upon, by the chancellor.
    3. A court of probate has large powers over the assets of estates.—The court of probate is invested with a large jurisdiction over the marshalling of the assets of deceased persons, compelling distribution and the payment of legacies. There may be instances in which it is necessary to invoke the larger powers of a court of equity to settle litigation, but such is not the case presented by this bill of complaint.
    
      4. A court of probate cam not, of its own motion, convert an annual into a final settlement.—-When proceedings are instituted and conducted for an annual or partial settlement, the court of probate can not, of its own motion, convert it into a final settlement, and render a final decree.
    Appeal from the Chancery Court of EtoAvah.
    Heard before the Hon. N. S. Graham.
    A bill of complaint was filed in the Chancery Court of Etowah county, by B. B. Whorton, one of the executors of the last will and testament of William Whorton, for the' purpose of obtaining a construction of the will and instructions as to the proper execution of its various provisions. It alleges that the decedent, William Whorton. a resident citizen of Etowah county, made on the 8th day of February, 1850, his last will and testament, and shortly thereafter died in St. Clair county, but in that part of it, which is now included in Etowah. The will was duly probated in the Probate Court of St. Clair county, and letters testamentary were granted to the complainant and Elizabeth Whorton, as executor and executrix in accordance with their appointment as such by the will. They executed bonds and entered upon the discharge, of their duties. One Isaac Green, who was also named in the will as an executor, never qualified as such. In 1863 the said Elizabeth Whorton died.
    One of the objects of the complainant’s bill was to obtain the proper construction of the following clause of the will:
    “Whereas, I have heretofore given to my sons, Benjamin B. Whorton and James Madison Whorton, and to my daughters, Louisa Green and Catharine Green, Mary Moragne’s heirs, eighteen hundred dollars only, property worth, in my estimation, two thousand dollars each. Now, I will and desire that my wife, Elizabeth, pay to each of my other children, Richard Pinkney, Elizabeth, and Martin Van Burén, the said amount of two thousand dollars each as they become of age or marry, and the heirs of Mary Moragne two hundred dollars to make them all equal; and I further will, and bequeath my property remaining after the decease of my wife, Elizabeth, of all kinds and descriptions, to be equally divided between my said children, Benjamin B., James M., Richard Pinkney,' Martin Van Burén, Louisa, Catherine, the heirs of Mary Moragne, share and share equal and alike.” The questions suggested to the complainant by the foregoing extract were : “ First, whether or not the said two hundred dollars, bequeathed to the Moragne heirs, is a personal trust, confined to the said Elizabeth, or attaches to the executorship of the said estate; and second, as to when it is or was payable, provided it attaches to the duty of your orator, as executor.”
    The testator died, seized and possessed of a valuable tract of land, lying in what is now Etowah county. And for the purpose of distribution among the legate'es in the will, the .executor obtained, in 1864, an order of sale from the Probate Court of St. Clair county; and on the 17th day of March, 1864, the said land was sold at auction, to one Joseph L. Cunningham, as the highest bidder. The said Cunningham never paid for the land, and the executor filed a bill to •enforce the vendor’s lien. On the 28th of June, 1874, he obtained a decree to sell the said land for the payment of ■•the purchase-money. In pursuance of this decree, the register sold at public auction, for cash, the said land; and the said executor, as the highest bidder, became th,e purchaser.
    An inventory of the personal property belonging to the estate of the testator was made and returned to the Probate Court of St. Clair county. Under the authority of an order granted by the said court, the personalty was sold on a credit of twelve months; “ The terms of the sale were that the purchasers were to pay in Confederate money, or the currency of the country at the time the notes fell due.” At the sale the executor bought some of the property. At the same sales James M. "Whorton, one of the legatees of said estate, purchased property, and is still indebted to the executor for the articles bought by him. Subsequently to the sale and purchase of a part of the personalty by him, the said James M. Whorton migrated to Texas, and there died, leaving a widow.
    The bill alleges that the probate judge of St. Clair cited the executor to make an annual settlement of the said estate. And that in obedience to the said citation, the said executor filed his account for an annual settlement; that this was so advertised, and that “ the contest filed by Green and Williams, parties claiming to be legatees, was to the account of” the executor “for an annual settlement.” That “no notice was given to the executor either in writing or otherwise that a final settlement and distribution would be made. The evidence and argument of counsel were heard on said settlement, and the court reserved its decision. The executor then retired, and knew nothing of the decree of distribution rendered by the court until long afterwards.”
    Upon these facts, after praying that process might be issued to the legatees and distributees of the said estate, the executor as complainant, prayed, among other things, that the executor should be required “ to file his account before the register for final settlement, and that any interested may contest the same as near as may be, under the rules and practice of the Probate Court in such cases,” and that an injunction might be granted “ against James M. Moragne, enjoining him from proceeding further to enforce the final settlement of your orator in said Probate Court until the .further order” of the Court of Chancery; and “that an order be issued to the probate judge of St. Clair county to proceed no further in the matter of said final settlement in the Probate Court of said county until the further order of this court,” &c.
    On the final hearing of the case, the bill of the complainant was dismissed for want of equity.
    James Aiken, for appellant.—
    1. It is admitted when the judge of probate has taken jurisdiction of the settlement of an estate, the executor must show some special grounds of equity to remove the case into chancery. This, the bill does in this caso. The will is difficult of construction. It is doubtful what interest Mrs. Elizabeth Whoi’ton took in the property—-whether the absolute property, or a life estate. 34 Ala. 349, and authorities; 19 Am. Eeps. 525; 13 ib. 23; 30 Aia. 404.
    2. ' The legacy to the heirs of Mary Moragne is a persono! trust conferred on Elizabeth, the co-executrix of appellant. 36 Ala. 153; 41 Ala. 649. She being dead, how is the personal trust to be executed ? Does the personal trust attach to the appellant ? Must that legacy be paid by the executor out of the assets of the estate? Or must he as executor have nothing to do with it? This is such a difficulty as will justify a recourse to equity.-—35 Ala. 235. For this is such a pure trust a Court of Probate has no jurisdiction of it.—-4 Port. 332; 8 Port. 380; 17 Ala. 214; ib. 170.
    3. Another -ground of equity is to set off the indebtedness of J. M. Whorton, one of the legatees, to the estate for property bought by him at the sales, against his legacy, he having removed to Texas, and died insolvent.—1 Eoper on Leg. 924; 2 Story Eq. Jur. §§ 1434, 1441. What interest Mrs. Mattie Whorton, widow of J. M. Whorton, has in the proceeds of the land for dower in her husband’s interest sold by appellant, is also a ground of equity. Is it not proper to bring all the parties before the court, and have-these matters settled in one suit?—38 Ala. 35.
    4. It is insisted that the settlement of October 17th, 1871, is and was only an annual one. That if the decree be final it is fraudulent for the reasons set forth in the amended -bill. That it was an annual settlement will appear also from the citation.—Eevised Code, § 2141. Under the pleadings in the Probate Court, the judge had no jurisdiction except to state the account between the appellant and the estate. He had no authority to decree a distribution.
    
      No Counsel for appellees.
   BBICKELL, C. J.—

A court of equity will not, at the instance of an administrator or executor, arrest proceedings commenced in a Court of Probate for a final settlement of an administration, unless some specific fact or circumstance is shown, which renders the limited powers of that court, inadequate to a full and complete execution and settlement of the trusts of the administration.—Horton v. Mosely, 17 Ala. 749; Moore v. Lesseur, 33 Ala. 237; McNeil v. McNeil, 36 Ala. 109; Park v. Park, ib. 132. If trusts created by the will, are to be executed; or if there are complicated matters of account, and a discovery is necessary; or if the affairs of the testator or intestate, are so much involved, that he can not safely administer without the aid of a court of equity, it is competent for him to institute a suit bringing all parties in interest before the court, and procure its direc-tions.—1 Story’s Eq. § 544; McNeil v. McNeil, supra; Gould v. Hayes, 19 Ala. 438.

The chancellor dismissed the bill for want of equity, before the cause was in a condition for a hearing on the merits, and in the absence of necessary parties, if the court should take jurisdiction of the administration. It is improper therefore for this court, on the present appeal, to decide any other question than the equity of the bill; no other having been submitted to, and passed upon by the chancellor.—Sellers v. Sellers, 35 Ala. 235.

The will of the testator recites that he had made advancements to several of his children, who are mentioned by name, of the value of two thousand dollars each, ánd to another, of the value of eighteen hundred dollars, and then proceeds: “Now, I will and desire that my wife Elizabeth pay to each of my other children,” naming them, “ the said amount of two thousand dollars each, as they become of age or marry, and to the heirs of Mary Moragne two hundred dollars to make them all equal. And I further will and bequeath my property remaining after the demise of my wife Elizabeth, of all kinds and description to be equally divided between my said children, Benjamin B., James M., Bichard Pinkney, Martin 'Van Burén, Louisa, Catherine, the heirs of Mary Moragne, and Elizabeth, share and share, equal and alike.” The wife of the testator, the appellant one of his -sons, and a son-in-law, are appointed executrix and executors. Mary Moragne is the child of the testator, dying in Ms life, to whom he had advanced eighteen hundred dollars. The first question of doubt or difficulty, in the construction of the will, which the bill suggests, is as to the quantity and quality of the interest taken by the testator’s widow, and in reference to this, the advice and direction of the court is sought. There is no averment however, that a controversy exists as to this question; or of the quantity and quality of' interest which is claimed by the personal representative of the wife, or by her heirs or next of kin, if a claim is preferred. Nor is such personal representative, if there be one, or the heirs or next of kin, made parties to the bill, so that the court could properly adjudicate the question, if it is embarrassed with doubt and difficulty. The court of probate is invested with a large jurisdiction over the marshalling of the assets of deceased persons, compelling distribution, and the payment of legacies. The jurisdiction necessarily involves that of construing wills, and determining the quality and quantity of interest which passes to devisees and legatees. There may be cases of adverse claims and interests, in which the parties necessary to a final and conclusive adjudication can not be brought before that court and a court of" equity clothed with larger powers of bringing before it all parties claiming an interest, would of necessity intervene to-quiet litigation. It is possible, if in this case, the bill had averred that there was a controversy between the personal representative of the widow and her heirs, and the executor, and the legatees and devisees in remainder, as to the quality and quantity of the estate taken by the widow, and it had-been shown all parties could not be brought before the court of probate, and affected by its decree, a case of equitable-jurisdiction would have been presented. But that is not the case made by the bill. So far as is shown, all parties in interest concur, that her estate was limited to her life, and the assets in the hands of the executor are distributable to the remaindermen, according to the terms of the will. If" they do concur, it is not for the executor by presenting questions they may regard as unimportant, because their-' rights and interests are the same, whether the widow had a life interest, or a larger estate, to withdraw the administration from the court of probate.—Harrison v. Harrison, 9 Ala. 470.

The questions supposed to be involved in reference to the gift of two hundred dollars to the heirs of Mary Moragne, the court of probate has full jurisdiction to adjudicate finally, in the proceeding they have instituted to compel the execu— tor to its payment, and of consequence there is no ground* for equitable interference in reference to it.

5. Without the consent of the personal representative of' James M. Whorton, the court of probate would not have jurisdiction to set-off the debt due the executor for purchases of property against the distributive share which may be found due to him.—Kidd v. Peters, 13 Ala. 91; Bondurant v. King, 15 Ala. 202. It may be that under the facts stated in the bill, a court of equity would have jurisdiction as against the representative of said James M., to set-off the debts due' from him against the decree for his distributive share, even after its rendition. That however is an equity between the executor, and such personal representative, with which the other parties in interest have no concern, and which can not be invoked as a ground for equitable relief as against them.

6. The sale of the lands was made under a decree of the court of probate, in the life-time of James M. Whorton, whether the sale was prior or subsequent to the death of Catherine Green, is not shown by the bill; and there can be no intendment that it was prior to her death, if such intendment is necessary to support the equity of the bill. This fact distinguishes the case from Chaney v. Chaney, 38 Ala. 35. The personal representatives of these parties alone can recover of the executor the shares of the purchase-money of the lands, to which on settlement, it may be ascértained, they are entitled. Whether the widow of James M. can claim that his share of the purchase-money shall stand in the place of his interest in the land, and she shall be endowed thereof; and whether a similar claim may be made by the husband of Catherine Green, are questions in which the appellant has no interest. These questions can arise only after the personal representatives shall have received the shares of the purchase-money to which their intestates may be entitled, and they are proceeding to administer them.

7. The liability of the executor for his purchases at his own sales, the Court of Probate has complete jurisdiction to determine. If it is ascertained that he should be charged with the actual value of the property purchased, and not with the amount of his bids, made with the understanding that, payment should be made in Confederate treasury notes, there is no question of fact, of greater difficulty of solution than such as constantly arise in the settlement of estates.

8. The decree rendered against the executor on the settlement in the Court of Probate, so far as it proceeds to distribution, was unauthorized and should be vacated on proper’ application to that court. The proceedings were instituted and conducted for an annual or partial settlement, and it was not competent for the court, of its own motion, to convert it into a final settlement and render a final decree. King v. Collins, 4 Ala. 363. On final settlement, while it must be regarded as prima facie correct it will be competent for the executor, or for the other parties in interest to show errors in it, wbicb can then be corrected.

We concur witb the chancellor, tbat tbe bill in its present form, and with tbe present parties, is without equity. It is probable however, that there are facts and circumstances, which if properly presented, would render it indispensable to the protection of the appellant, and the prevention of injustice that a court of equity should take jurisdiction of the administration. We think therefore the decree of dismissal should have been without prejudice to the right of complainant to file a new bill, and the decree of the chancellor will be here corrected in that respect, and as corrected will be affirmed.  