64 Ala. 375 | Ala. | 1879
The present bill was filed to have a settlement of the administration of James M. Fason on the estate of Lucinda Eason, his deceased wife, and to recover a tract of land alleged to have descended to complainants from the said Lucinda. Three of the complainants are daughters of the said Lucinda, and other three are their husbands, they being married women. Another daughter of the said Lucinda had marriéd and died after the death of their mother, leaving a husband, but no descendant, surviving her. That surviving husband is a party complainant. Still another daughter had married after the death of her mother, had issue, and then she and her husband both died, leaving no other descendant. The son, issue of that marriage, grandson of the said Lucinda, was also made a complainant in this bill. These are the parties complainant. As to the deceased two daughters, it is averred they each died owing no debts, and that there had been no administration on either of their estates. As to Eatman, the son-in-law who had died, leaving a son surviving him, it is averred in the bill that there had been administration on his estate, his debts all paid, and the administration settled and closed. On none of these averments is there issue or controversy, and they may be treated as admitted facts. Barnes is the sole defendant, being sued as the only surety of said J ames M. Eason who is solvent, or living. The bill avers that Eason, the administrator, and Murphy, the other surety with Barnes on the administration bond, had each died, leaving no estate; that there had been no administration on either estate, and that they had left nothing to administer. We think these averments must also be treated as-true.
It is objected that the husbands of the female complainants are improperly joined as co-complainants, because they have no interest in the subject-matter of the suit. If any thing is recovered in this suit, either real or personal, it will be the statutory separate estate of the femes covert, of which their several husbands will become the trustees. Under the rule of practice in force in 1875, when this suit was commenced, and under the practice -which then prevailed, it was the uniform habit to join the husbands of married women, either as complainants or defendants in chancery, unless the nature of the proceeding rendered it necessary to make the husband an adversary party to his wife, when she was required to sue by next friend. — Rev. Code, 825, Rule 15; Michan & Wife v. Wyatt, 21 Ala. 813; Gerald & Wife v. McKenzie, 27 Ala. 166. The present suit is really by the wives, to recover that which
Under the averments of this bill, there was no necessity for an administration on the estates of either of the deceased daughters, as they owed no debts. Neither was there necessity for further administration on the estate of Eatman, the deceased son-in-law, as his estate had been administered, his debts paid, and the estate wound up. Whatever recovery may be had in this suit, on the claim and right of Mrs. Eatman or her husband, will go to their surviving child, who is one of the complainants. Chipman, the surviving husband of the other deceased daughter, who died without issue, and intestate, will share in whatever recovery her estate may be entitled to, under the statutes regulating descents and distributions; and hence he is a proper party. — Code of 1876, § 2714.-There is nothing to which Barnes can object, on the score of parties complainant in this case. — Fretwell v. McLemore, 52 Ala. 124. There was no necessity to have an administrator de bonis non of the estate of Mrs. Lucinda Fason. Nothing remained of the administration duties, except to make settlement and distribution. All debts had been paid, or will be presumed to have been paid, or barred, after so great length of time. It is not even pretended that Mrs. Fason’s estate owed any debts —Hatchett v. Billingslea, at the present term.
It is objected for Barnes, that the Chancery Court bad no jurisdiction to award restitution to complainants of the lands in controversy, because, according to the averments of the bill, there was a complete and adequate remedy at law. To this it is answered, first, that the conveyances in fee by Fa-son and Eatman, the trustee, had cast a cloud on the title of complainants, which it was their privilege to have the chancellor remove.
To this it is a sufficient answer, that the complainants were not in possession ; were at perfect liberty to bring their action at law to test the title and right of possession; and therefore a bill to remove a mere cloud from the title would not lie. — Rea v. Longstreet, 54 Ala. 291; Jones v. DeGraffenreid, 60 Ala. 145. It is further replied to this demurrer, on the ground .of adequacy of the remedy at law, that the agreement, exhibit F to the bill, which Barnes procured three of the complainants to sign on the 8th January, 1872, interposed such an obstacle to the maintenance of an action at law, that chancery will intervene to remove the obstacle, and grant the relief the complainants claim. The paper, exhibit F, shows in its recitals that its purpose was to secure to Barnes a
The remaining questions of merit_arise out of the claim of compensation for board, nurture and education of Eason’s children, asserted by Barnes in recoupment of Eason’s administration indebtedness, and out of the release, or transfer, exhibit E to the bill. These claims have no bearing on the rights of complainant Eatman, child and successor of Joseph Ann Eatman, nee Moore; nor does the execution of exhibit F affect the distributive claim of Chipman, who was not a party to the transaction. We will consider the last named of these claims first. Mr. Barnes, being surety of Eason, and the only responsible party to the bond, is alone sought to be made liable for the alleged default of his principal. The purpose of the bill is to coerce a settlement of Eason’s administration. Barnes may make available all defenses which Ea-son could make, if he were defendant. He stands in his
Applying these principles to the case in hand, the release, or transfer, exhibit F to the bill, signed by the three complainants, Sabrina L., Bertha C., and Elenora Fason, of date January 8th, 1872, can not stand. The testimony not only fails to show that these young ladies were informed of the nature and extent of their claim, when they executed that paper, but it goes further, and proves to our satisfaction that they signed it without knowing, and without being able to learn its contents. Mr. Barnes can claim nothing under that release, or conveyance, except to have the one hundred dollars he paid allowed him as a credit against the distributive interests of these three complainants.
The relation of father and child, during the minority of the latter, imposes on the former the duty of nurture, maintenance and education, suitable to his estate and condition in life. If the father neglect or fail to furnish these necessaries to his infant child, graduated by the rule above, a stranger may supply them, and charge the father in invitum therefor. It must, however, be a clear and strong case of neglect or failure on the part of the father, to authorize the application of this principle. Much must be left to the discretion of the father in determining the style in which his minor children shall move. On the other hand, the father is entitled to the labor, services and obedience of his children, during their minority. These are correlative rights and duties between parent and child; and they exist, notwithstanding the father may be able to support bis child in ease and luxury, without the labor of the latter, and notwithstanding the child may own an independent, ample estate in his own right. An exception to this rule is allowed, when the father is unable to maintain and educate his child, having an
There must be a reversal in each of the appeals presented by this record. On the appeal by Barnes, there will be no remandment. The adult complainants will pay the costs of that appeal, in this court, and in the court below, including half the costs' of the transcript. On the appeal by Baines and others, this court, proceeding to render the decree the chancellor should have rendered, doth order and decree, that the complainants are entitled to recover of defendant the sum collected by Eason, as administrator of Lucinda, after her death, with lawful interest thereon, commencing six months after it was collected, but not to exceed twenty-five hundred dollars, the penalty of the administration bond. He will be allowed a credit on the accrued interest on this sum of the one hundred dollars, paid to the three female distributees, to be deducted ratably from their several distributive shares. Complainant Chipman is entitled to only one half of the fifth part of the fund which would have fallen to his intestate, deceased wife. The other half of that share to be divided equally between complainants Sabrina, Bertha and Eleanora, and the infant Eatman. The register will take the account on these principles, and report the same to the Chancery Court. All other questions in the court below are left open for the chancellor. The appellee John E>. Barnes will pay the costs of appeal by Baines and others in this court and in the court below, including half the cost, of the transcript.