Alexander v. Chapman

127 Ala. 465

• Court: Supreme Court of Alabama
• Decided: November 15, 1900
• Status: Published

Opinion

McCLELLAN, O. J.

The bill in this case was filed by Susan J. Chapman and others against John D. Alexander and others. The object of the bill and its prayer is to remove -the administration of the-estate of Joseph M. Alexander, deceased, into the chancery court, and to ‘have an accounting there'by the executor and a final settlement of the estate. John D. and Dewit 0. Alexander, two of the three persons nominated as executors by the will of Joseph M. Alexander duly probated the same and qualified as such executors, but Dewit O', took no active part in the administration, and soon after died, leaving John D. as sole executor. Upon submission for final decree on pleadings and proof, a decree was rendered January 7th, 1887, removing the administration into the chancery court and for an accounting by the executor and settlement of the estate. This was an adjudication of the equities involved in favor of the complainants, and hence was such final decree as would support an appeal. An appeal was.taken from this decree and,it was affirmed by this court. This decree of January 7th, 1887, after settling the equities thus in favor of the complainants, went further and decreed that a reference be held by the register to take and state the account between the estate and the executor, and contained directions as to the manner of stating the account. The register pursuant thereto did take and state the account, and made his report to the court on March 9 th, 1896. Exceptions to the report were taken both by the complainants and by the respondent, John D. Alexander ; and thereupon the cause was submitted “for decree on the report of the register * * * and the exceptions filed thereto by complainants * * ’ * and by the respondent John D. Alexander, and held up by consent of' parties for decree in. vacation or at the next term.” Upon this submission a decree was rendered on Septemhter 15th, 1896, sustaining all the exceptions taken by complainants, and the fourth and in part the thirteenth exceptions taken by John D. Alexander, and overruling all other exceptions taken by said Alexander, and ratifying and confirming the register’s report “except the parts to which exceptions have been herein above sustained.”- The decree then proceeds: “That the said report of said register is hereby again referred to said’ register and that the said register is ordered to restate the account of the said John D. Alexander contained in said’ report so as to conform in the particulars named in this decree to the rulings of the court herein above set forth.” The decree then goes on further to direct the register “after he has restated said account in -conformity with this decree to ascertain and report the name of each person entitled to distribution to any part of the estate of the said Joseph M. Alexander, and in what right, whether 'such person is -a minor -of full age, how each is related to the said J. M. Alexander, and the exact part to which each of said persons is entitled after allowing said John D. Alexander all just credits and offsets, and in so -doing he will report which of the said devisees, legatees or li-eirs of the -said J. M. Alexander or of those claiming under them have filed disclaimers of any right or claim of recovery in this case, or have given to said executor discharges or releases, or have otherwise made settlement with him, and which of them have since died, and whether his or her heirs are entitled to distribution in said estate. The register will also ascertain and report whether the note of eleven hundred dollars given by D. C. Alexander now deceased to Joseph M. Alexander, now deceased, and with which the said John D. Alexander was charged in the register’s report in this cause, was charged against the estate of the said D. C. Alexander in said John D. Alexander’s settlement thereof m the probate court of Marengo county, or in -any way taken into account therein, -or has in any way been paid by the said estate of D. O. Alexander, or the distributees or legatees thereof, or by those -claiming under them; and the question whether the said note or the amount thereof as charged against said John D. Alexander in the reai-ster’s report filed in this cause, or any or what part thereof should be credited to him, said John D. Alexander on his settlement in this court of the estate of Joseph M. Alexander as between him and the distributees and legatees of the estate of D. C. Alexander, or those claiming under them, or charged against said legatees or distributees, is reserved till the coming in of said report. But no more oral evidence shall be taken in this cause except by consent or leave of court.” There is -a further direction that the register -ascertain and report what would be proper compensation for the guardian ad litem of certain minor respond■ents; and then the decree concludes as follows: “And this cause is held up for decree on said report of said register (so to be made) either in term time or vacation.” This is the decree from which the present appeal is prosecuted. It is clear, we thinlc, that it is not a final decree in any sense, and will not support the appeal. It is an interlocutory decree from which no appeal is authorized. It is indeed a mere decree of reference to the register to take and state the account against John D. Alexander as executor of the estate of Joseph M. Alexander. While it in terms “ratifies and confirms” the report of the register except the parts to which exceptions are specially sustained, the whole report is expressly referred hack to thé register and he is directed to retake and restate the account anew in accordance with the court’s rulings on the exceptions, and new ■matters are submitted having a bearing upon the account, so that the language of the decree as to ratifying and confirming parts of the report imports no more than an expression of the court’s opinion that the register acted correctly in respect to those parts, involving a mere direction to him to pursue the same course as to them on the new reference. There is no ascertainment in the decree of the amount chargeable against John D. Alexander. There is no decree against him for any amount. There is similarly no ascertainment of what is due the complainants, or any other distributees or legatees nor any decree in favor of anybody for any amount. The primal equities of the case having been settled by the decree of January 7th, 1887, they were not involved on this submission and this decree has. no bearing upon them. The decree is, we repeat, on its face palpably a mere decree of reference to the register to take and state the account against the executor, and to ascertain who are entitled, and in what part severally, to participation in the fund he may be ultimately adjudicated to pay; and it involves no element of finality. Moreover, had the report of the register been in all things confirmed without more,‘without a money decree against the executor for the amount reported against him and in favor of the complainants and the other distributees and legatees for the sums due them. it would still ‘have been an interlocutory decree subject to the chancellor’s revision at a. subsequent term, and therefore incapable of supporting an appeal to this court. — Rust v. Electric Lighting Co., 124 Ala. 202.

Upon the foregoing considerations this appeal must .be dismissed.