Caldwell v. Caldwell , 121 Ala. 598 ( 1898 )

■ ■"TYSON,- J.

— Section 239 of the Code* requires on a final 'settlement of an -estate, by an executor or administrator, The probate court to allow such executor or administrator as a set-off against the distributive share of a-distributee any- debt owing the estate by such distri-butee contracted with the deceased in lifetime or with the* executor or administrator in his representative capacity. ■ Should, however, the amount of the debt exceed the distributive share, no decree can be rendered in favor of ’the executor or administrator for the excess, but he will'have to resort to the proper forum to collect this excess :diie him from such distributee. — Code § 240.

•1 * It is Obv-iofis that’ the decree ascertaining the amount owing by a-distributee to the estate as to the excess is 'not binding in another court where a suit is instituted by an-executor Or administrator to recover this excess. The only jurisdiction conferred upon the probate court is' to’ ascertain that the distributee’s indebtedness is equal-to or exceeds his distributive share. And it may be that the proper practice under these sections would be for -the probate court to simply ascertain that the dis-tributee’s- -indebtedness to the estate exceeds the distributive1 share of Such distributee, and that it is set off in favor of the executor or administrator against his distributive share, and he be not allowed to participate in the distribution of the estate. But when it is apparent that no injury resulted in stating the amount of the indebtedness owing by the distributee in the decree and none could possibly result, the decree will not be disturbed should it appear that the amount of the indebtedness as stated in the decree is too large. Whenever the amount of bis indebtedness is confessedly in excess of bis distributive share, there is no error of which be can be beard to complain.

We entertain no doubt that the award was binding upon the appellant. It appears there was a written submission of the matters in dispute between the parties, that each appeared before the arbitrator and each was accorded a bearing. The appellant after attending upon the sittings of the arbitrator for two days, accompanied by his counsel withdrew and refused to further attend and participate. No fraud or unfairness is charged or shoAvn. The award rendered by the arbitrator was fairly responsive to and within the issues presented to him in the written submission and its rendition was conclusive upon the appellant. The very matter be now complains of here, was fairly and impartially, so far as we are advised, adjudged by the arbitrator, and his indebtedness to the estate ascertained to be quite forty times the amount of bis distributive share in the estate.

Much stress is laid upon the word “advancements” as found in the decree and used by the witnesses in their testimony. It may be conceded it was improvidently used, but after all practically it is of no consequence whether bis indebtedness to the estate arose out of “advancements” made to him by bis father or debts due by him to bis father. The only material difference between the two, so far as the settlement is involved, is, advancements do not bear interest and debts do. Had the entire amount of bis indebtedness to the estate arisen out of advancements made by bis father, it Avould still have been the duty of the probate court to have excluded him from any further participation in the division and distribution of the estate, if the amount of such advancement was equal to or exceeded bis share. — Code, § 1464.. However, as to all these matters the arbitration proceeding was conclusive and there was no error in admitting the «.ward in evidence,

This renders it unnecessary to consider,.the other, numerous assignments of error, since, upon this-award, the court could have properly ascertained the amount of appellant’s indebtedness to his father’s estate to be the sum named in the decree.

Decree is affirmed.