Cook v. Cook

Supreme Court of Alabama

Cook v. Cook

69 Ala. 294

CourtSupreme Court of Alabama

DecidedDecember 15, 1881

StatusPublished

Cited by5 cases

This text of 69 Ala. 294 (Cook v. Cook) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cook v. Cook, 69 Ala. 294 (Ala. 1881).

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Opinion

SOMEBYILLE, J.

Every executor or administrator is required by law to make annual settlements of his administration,, and “ may, when necessary for the interests of the estate, be required to make a settlement at any time.” — Code, 1816, § 2508. And after the lapse of eighteen months from the grant of letters, if all the debts are paid, “ and the condition of the estate, in other respects, will admit of it,” a final settlement may be required, either at the instance of those interested, or ex mew motu, by the action of the court. After citation served upon an executor or administrator to this end, requiring him to file-his accounts and vouchers, and to make settlement, he may be-compelled by attachment to obey the order of the court, or the-judge of probate may proceed to state an account against him.. Code, §§ 2528, 2524, 2525; Hooper v. Smith, 57 Ala. 557; 1 Brick. Dig. p. 981, §§ 950 et seq.

The jurisdiction of the probate court in this case did not,, therefore, depend on the petition of the appellees to compel the appellant, who was their co-executor, to make a settlement, of his executorship.

John Cook, the appellant, was properly, chargeable with the money deposited with him, or in his custody, by the testator during his life. "When a debtor of an estate, or of a testator,, takes out letters testamentary or of administration, the presump[296]*296tion of payment at once arises, without regard, to the solvency of the debtor so appointed, or the duration of his administration. — Miller v. Irby’s Adm’r, 63 Ala. 477; Wright v. Lang, 66 Ala. 389.

There was no authority, however, to enter a decree in favor of the co-executors against the appellant. The only case where a decree is authorized in favor of one personal representative against another, is where there is a removal, a resignation or revocation of the letters of an executor or administrator, or his authority ceases for any cause; in such case a decree may be rendered in favor of a remaining or succeeding executor or administrator. — Code, §§ 2590-91.. The court erred in not rendering the decree in favor of the several devisees or legatees under the will. — Code, §§ 2530, 2475.

Reversed and remanded.

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SOMEBYILLE, J.

Every executor or administrator is required by law to make annual settlements of his administration,, and “ may, when necessary for the interests of the estate, be required to make a settlement at any time.” — Code, 1816, § 2508. And after the lapse of eighteen months from the grant of letters, if all the debts are paid, “ and the condition of the estate, in other respects, will admit of it,” a final settlement may be required, either at the instance of those interested, or ex mew motu, by the action of the court. After citation served upon an executor or administrator to this end, requiring him to file-his accounts and vouchers, and to make settlement, he may be-compelled by attachment to obey the order of the court, or the-judge of probate may proceed to state an account against him.. Code, §§ 2528, 2524, 2525; Hooper v. Smith, 57 Ala. 557; 1 Brick. Dig. p. 981, §§ 950 et seq.

The jurisdiction of the probate court in this case did not,, therefore, depend on the petition of the appellees to compel the appellant, who was their co-executor, to make a settlement, of his executorship.

John Cook, the appellant, was properly, chargeable with the money deposited with him, or in his custody, by the testator during his life. "When a debtor of an estate, or of a testator,, takes out letters testamentary or of administration, the presump[296]*296tion of payment at once arises, without regard, to the solvency of the debtor so appointed, or the duration of his administration. — Miller v. Irby’s Adm’r, 63 Ala. 477; Wright v. Lang, 66 Ala. 389.

There was no authority, however, to enter a decree in favor of the co-executors against the appellant. The only case where a decree is authorized in favor of one personal representative against another, is where there is a removal, a resignation or revocation of the letters of an executor or administrator, or his authority ceases for any cause; in such case a decree may be rendered in favor of a remaining or succeeding executor or administrator. — Code, §§ 2590-91.. The court erred in not rendering the decree in favor of the several devisees or legatees under the will. — Code, §§ 2530, 2475.

Reversed and remanded.

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