57 So. 442 | Ala. | 1912
The bill in this case is filed by an executrix to remove the settlement and administration of the estate of her testator from the probate to the chancery court. The special ground alleged for the removal is to obtain the aid and assistance of the chancery court in the construction of the will, and in the administration of the trusts necessary to a proper settlement of the estate. The respondents, some of whom are co-executórs and devisees, demurred to the bill, which demurrer was overruled. The bill Avas subsequently amended, however, and the demurrer was interposed to the amended bill. An answer Avas also filed, Avhich was made a cross-bill, and to this answer and cross-bill demurrers were interposed.
It is earnestly insisted on this appeal by both appellants and appellee that we should so far construe the will in question as to determine whether certain clauses therein are valid or Amid. We cannot accede to the correctness of this proposition. Our jurisditcion in this instance is appellate only, for the purpose of revieAving the correctness of the interlocutory decree of the chancellor from Avhich the appeal is taken. The chancellor has not yet passed upon the merits of the case; nor can Ave act on this appeal further than to affirm or overrule the decree rendered by him. If Ave -affirm the decree of the chancellor overruling the demurrer, then the case will proceed on its merits and the chancellor Avill have to construe the will; and on an appeal from a decree construing the will, or settling the rights of the parties thereunder, Ave could review such decree, and, if necessary, construe the will. But Ave cannot construe the Avill on this special appeal, and any attempt to do so would not be binding on us nor the parties. The demuirers to the amended bill, at most, merely tested the sufficiency of the averments of the bill as amended. The chancellor decreel only that the demurrer Avas not well taken, and that it was overruled. We fully concur with the chancellor, and mud therefore affirm his decree.
The chancellor on that hearing Avas not authorized nor called upon to construe the will, but only to construe the bill. The main, if not the sole, equity of the ] bill, Avas to obtain a construction of the will by the
In nearly all equity cases a preliminary inquiry is first to he made: Has the court jurisdiction? Is the bill or petition sufficient to authorize equitable interposition and relief? The interposition of chancery is extraordinary, and can be obtained only Avlien the ordinary tribunals are inadequate to full and complete relief.
In the case before us the complaint sets out the will or parts thereof, and alleges that parts of the will are involved, complicated, and that complainant is advised that parts thereof are void, and that for this reason she seeks the advice of the chancery court as to the proper
We conclude that the chancellor correctly overruled the demurrer to the amended bill; and that, for the reasons before assigned,- the bill contains equity.
Affirmed.