Andrews v. Hall

15 Ala. 85

• Court: Supreme Court of Alabama
• Decided: June 15, 1848
• Status: Published

Opinion

CHILTON, J.

1. The decree in this cause made by the orphans’ court, which ascertains the interest of the several distributees, and requires their respective shares to be set apart by commissioners, must be regarded as final, so as to authorize its revision on error. Such was the decision by this court in Harrison et al. ex parte, 7 Ala. Rep. 736; see also, Weatherford v. James, 2 Ala. 170; McKinley v. Irvine, 13 Ib. 681. The motion to dismiss the writ of error, is therefore overruled.

2. The statute requires, that when any of the children of a person dying intestate, shall have received from such intestate, in his lifetime, any real or personal estate by way of advancement, and shall choose to come into the partition of the estate, such advancement, both of the real and personal estate, or the value thereof, shall be brought into hotchpot with the whole estate, real and personal, descended ,• and such party bringing into hotchpot such advancement as aforesaid, shall thereupon be entitled to his, her, or their share of the whole estate so descended, both real and personal. Clay’s Dig. 197, § 25. In this case, Richard Hall, the grandson of the intestate, and who is entitled to the distributive share of his deceased father, William A. Hall, is an infant, under the age of twenty-one years, and the question is presented, can the guardian ad litem, or the orphans’ court judge, or both, elect for him to bring into the estate, the value of the property received as an advancement by his deceased father, from the intestate. This question has never before come before this court, and is one not entirely free from difficulty.

There can be no question but that the law requires the child whose deceased parent has been advanced in his lifetime, to bring into hotchpot the share or its value which has been so advanced, before he is allowed to participate in the distribution of the intestate’s estate, since, as the representative of his father, he could have no better claim than he would have had, if living. See 2 Williams on Ex’rs, 919; Proud v. Turner, 2 P. Wms. 560.

The statute confers upon the county court judges, “authority, within their respective jurisdictions, from time to time, to take cognizance of all matters concerning orphans and their estates.” Dig. 302, § 28. The power is given to settle estates, and to require the children advanced to bring into the estate the sums advanced to them, &c. If the share to which the infant would be entitled, upon bringing the advance to his parent into hotchpot would exceed the value of the advance, then, being for the interest of the infant to take a distributive share, the power is lodged somewhere, as he cannot elect himself, to make the election for him. In England, the king as pater patriae, has the care of infants, and the court of chancery, to which that care is delegated, has a general control over them and their interests, whenever they become wards of the court. Bertie v. Lord Falkland, 2 Vern. 333; 2 P. Wms. 119; 1 Mad. Ch. 331. In our country, the same authority is vested in the equity courts, having adopted the English rules of procedure so far as consistent with the genius of our institutions; in this State, however, it is manifest the legislature intended to confer upon the county court judges an enlarged jurisdiction over orphans and their estates, from the general language in which the act above copied is couched. And we think the orphans’ court has power, concurrently with the court of equity, to direct an election in cases like the present, for the benefit of the infant. No good could result from driving the parties to a court of equity, and much delay and expense will be avoided by the exercise of the jurisdiction by, the orphans’ court:; besides, such power seems to be inseparably connected with the proper discharge of the duties devolved by the statutes upon that court. See Gregg et al. v. Bethea, 6 Porter 9. There may cases arise where the jurisdiction of the orphans’ court is inadequate to furnish relief, and the party must resort to a court of equity, but this is not one of them. It is an error to suppose that the office of a guardian ad litem is a mere sinecure. It often happens that he should seriously contest the plaintiff’s claim. His duty requires him to acquaint himself with the rights, both legal and equitable of his ward, and to take all necessary steps to defend and protect them. If, in consequence of his culpable omission or neglect, the interests of the infant are sacrificed, he may be punished for his neglect, as well as made to respond to the infant for the damage sustained. Knickerbacker v. De Friest et al. 2 Paige, 304. It was the duty of the guardian ad litem in this case, to present to the court the right of his ward to contribution, and the circumstances and conditions connected with it, so that the court could protect him by making the election which was essential to his interest. This was done in the court below, and the action of the court is free from error.

3, The orphans’ court however erred in permitting the widow to share in the estate brought into hotchpot. She is is not entitled to any share in advancements made by her husband to his children, unless real estate be advanced, in which she may claim dower. This point was expressly decided by this court in Logan v. Logan, at the last term, and we need not further notice it here. It follows,, that as the widow could not participate in the advancements made to the children, she had no interest which could be affected by her testimony, and was a competent witness as between the administrator and distributees to prove the value of the advancements.

"We should be inclined, from the proof set out in the record, to place a higher estimate upon the slaves advanced to Wm. A. Hall, than was affixed by the judge below, but as the case must go back, and additional proof may be taken, an opinion upon this point in the cause becomes unnecessary.

Let the judgment be reversed and the cause remanded.