112 So. 529 | Ala. | 1927
The proceeding was in the probate court by intervention of Ralph Estes, a minor, to compel the administrator to recognize him as a distributee of the Glanton estate. The appeal was to the circuit court, where the motions of the administrator were overruled, and hence the appeal to this court under sections 6101, 6114, 6115, Code of 1923.
The motion to strike admits the facts averred in the petition in so far as material to the motion. The petition was heard and stricken on December 7, 1925, and appeal taken by bond, that is marked approved by Judge of Probate January 28, 1925. This was a clerical misprision, as the approval in fact was on January 28, 1926, and was within six months of the decision or decree, the effect of which was as to "the payment of a * * * distributive share" (section 6115, subd. 4, Code of 1923), and was within the right provided by sections 6114, 6115 of the Code. The record otherwise shows the true date of filing the appeal bond to have been January 28, 1926. The appeal was seasonably taken to the circuit court to determine the minor's distributive share in the estate, and was so considered in the circuit court. The orders were properly entered (1) overruling the motion to dismiss the appeal, and (2) that remanding the cause to the probate court for trial of the fact determinative of the minor's right vel non of a distributive share or interest in said estate. This action of the circuit court was in line with the general policy of courts to treat an intervention, in nature an equitable remedy, necessary to enforce the justice of the case determined according to law as between those entitled. Marsh v. Mut. Life Ins. Co.,
The right of intervention is a common law remedy, and our statutes cumulative. The general subject is treated in Rocca v. Thompson,
In Townsend v. Steel,
"The record shows that the appellee appeared in the court below, claiming to be the sole heir at law of the decedent; and on her motion the petition of the administrator was dismissed. The bill of exceptions, however, which purports to set out all the evidence, fails to show that she was an heir at all, or had any interest in the estate of Dorse. If she had appeared, and satisfied the court prima facie that she was an heir, the proper practice would be to permit her to be made a party defendant, with permission to controvert the application, including the statement as to who were the real heirs of the decedent. We have often held, in such cases, that an heir, whose name is omitted from the application, may appear, even after judgment, and be made a party to the record, on petition and proof of interest, in order to sue out an appeal to this court, this being the only mode in which the interest of such heir can be properly protected, after the order of sale is made. Lyons v. Hamner,
This right is necessary to that of due process under the Constitutions. Lyons v. Hamner, supra. *68
The personal representative is a party entitled to litigate the right of any one who claims an interest in final distribution. Watson v. May,
It is insisted by the appellant that the petition was that of application for removal of the administrator and the grant of letters to nonresident petitioner under sections 5742-5744 of the Code. Such is not its legal import. It was merely that of an omitted distributee to be permitted to be heard in the presentation of his claim to a part of the distribution of the estate, and was not for the grant of letters of administration. No doubt the ruling of the probate court in declining to entertain the petition and hear the evidence as to the kinship of the petitioner was on the mistaken assumption that the purpose was the removal of said personal representative granted after 40 days, etc. Garrett v. Harrison,
It is further insisted that the provisions of section 9485 of the Code were strictly applicable and not shown to have been complied with as to preliminary notice to all parties in interest in the fund to be distributed, or to the cestui que trust. It is noted that the intervention provided in section 9485 has primarily application to proceedings that are strictly inter partes filed by leave of the court, and notice to "parties to the action or proceeding who have not appeared and upon the attorneys of the parties who have appeared." The leave of the court was for hearing and notice to the administrator. That personal representative appeared and moved to strike the petition, which was peremptorily granted.
There was no hearing on the facts, as there should have been. And it was from this final action of the probate court the appeal to the circuit court was taken. It is true the petition did not indicate which of the named distributees had "not appeared" in the due course of the administration, or which of said parties in interest that had appeared in the proceeding and were represented by "attorneys"; and that the motion to strike the petition was rested on several grounds, one of which was that "no service upon the parties has been had as required by law."
In Martin v. Ellerbe's Adm'r,
The grant of letters and that of a due administration of an estate is in the nature of a proceeding in rem, until it assumes, by an act of the interested parties, the character of a proceeding in personam. White v. Hill,
At common law lands passed to the heir, and the personal representative held the personal property for a due administration — payment of debts, costs, and distribution to parties in interest as distributees or legatees. Nelson v. Boynton,
It follows that the petition should have been entertained for a due hearing on the facts, and not stricken on motion of the personal representative. To bind the several parties in interest, for the purpose of a distribution, they can be duly and respectively brought in on notice as proper parties before the court, and as being the repository of the legal title to the real property — "house and lot." The decree of the circuit court is affirmed.
Affirmed.
ANDERSON, C. J., and SOMERVILLE and BROWN, JJ., concur. *69