Bromberg v. Bates, 98 Ala. 621

98 Ala. 621 | Ala. | 1893

COLEMAN, J.

The bill was filed in the Chancery Court by Theodore O. Bates et al. for the purpose of having the administration and settlement of the estate of Susan F. Rouse removed from the Probate Court to tbe Chancery Court. The bill avers that complainants are the heirs at law and next of kin to deceased. It is the settled law of this State, that any person entitled to share in the distribution of an estate, whether as devisee, legatee or as an heir at law, without showing any special equity, has the right to have the administration of such estate, settled in a court of equity. The reasons have been so often stated, it is unnecessary to repeat them.—Gould v. Hayes, 19 Ala. 438; Moore v. Randolph, 70 Ala. 575; James v. Faulk, 54 Ala. 184; Hill v. Armistead, 56 Ala. 118; Teague v. Corbett, 57 Ala. 529; Bragg v. Beers, 71 Ala. 151; Otis v. Dargan, 53 Ala. 178.

The demurrer to the bill, for want of equity was properly overruled. It is no cause for demurrer to a bill filed to remove an administration from the Probate Court to the Chancery Court, that the inventory filed by the executor is not a “full and complete” inventory as required by the statute. A petition to this effect might be filed after the Chancery Court has assumed jurisdiction of the settlement of the estate, but it is quite proper, in the bill itself if deemed necessary, to furnish a statement of all the effects believed to have been omitted from the inventory, or for which the complainants propose to charge the administrator, or claim as assets belonging to said estate.— Hunly v. Hmily, 15 Ala. 91. The bill shows that deceased left a last will and testament, which had been duly probated. There are no devises or bequests by the will to complainants but the bill shows that a large portion of testatrix’s estate was undisposed of by will and that as to such part, she died intestate. It is as to the property of which she died intestate, that complainants claim in their bill to be entitled to, as her next of kin and lawful heirs.

Section 2000, of the Code, provides that “Any person interested in any will who has not contested the same under the provisions of this article, may, at any time within five years after the admission of such will to probate in this State, contest the validity of the same by bill in chancery,” &c.

The present bill is not one filed to contest the validity of the. will, under this section, and its validity can not become an issue in this case. The bill merely states that the will has been probated, “neither affirming or denying its validity,” and avers that a large estate, specifying the property, was left undisposed of by will. If the averments of the bill are, and on demurrer must be taken to be true, a3 next of kin, complainants are entitled to tbe residuum, after payment of specific legacies, debts and cost of administration. They are entitled to this residuum whether the will is valid or invalid. Section 2Ü00, supra, never contemplated that persons occupying the relation towards the estate, that complainants do, should affirm the validity of the will, in order to obtain that which is theirs outside of, and independent of the will. They claim neither under the will nor against the will, but as heirs at law, as in cases of intestacy. It may be that they are not advised of any facts which would authorize a resort to chancery to contest the will, and it may be that none in fact .exist. Complainants are not required to wait until after the expiration of five years, before they can proceed to claim that which is theirs, independent of the question of the validity vel non of the will. The demurrer directed to this feature of the bill was properly overruled.

Mrs. Zadek is a legatee under the will, and a proper party to a bill, filed to remove the administration from the Probate to the Chancery Court. The remaining question for consideration, is whether certain statements of the bill are to be regarded as merely impertinent matter, or as averments, presenting an issue of fact which may become material, considered in connection with other facts, in sustaining the ground upon which some relief is sought.

It is not always an easy matter to determine, whether a fact averred, is merely insufficient, and subject to demurrer, or whether the fact averred is simply impertinent, and liable to be stricken out on a reference. Where the facts averred are relied upon, as the grounds for relief, and are insufficient in law to authorize the relief, their insufficiency is open to demurrer. If a fact averred is intended to explain or account for some material fact, or to strengthen or affect some other such fact, or is made to constitute a link in a chain of facts and circumstances, and which are relied upon, as ground for relief, there should be sufficient averments to show the connection of the fact, with the other facts and the purpose of the pleader in making the statement. If the opposite party can not tell from the pleading whether to regard the averment as mere surplusage, and impertinent, or whether, to treat it as presenting an issue that may become material in the progress of the trial, then it is open to demurrer. An impertinent fact is one, whether proven or not, or whether admitted or denied, can have no influence in leading to a result. A party guilty of pleading impertinent matter, can always, even at the final hearing be punished by the court, in the adjustment of cost, and as injury might result, if the matter was wrongfully stricken out, tbe courts are not quick to consider any averments of facts as impertinent. Such must clearly appear to be its character.—Story Eq. Pl. §§ 267, 270; 6 Amer. Encyc. 757; Woods v. Morrell, 1 Johns. Ch. (N. Y.) 104, 107.

In the 4th paragraph of the bill, it is charged that during the life time of testatrix, Frederick Bromberg, the executor, “was her attorney, that she had great confidence in him, and he, owing to such confidence, and the relationship of attorney and client existing between them, had great influence over said Susan F. Rouse.” “That said Bromberg was the brother-in-law of E. O. Zadek, and that his wife is the sister of the said Bromberg.” If these averments stood alone, they might be regarded as impertinent. But when considered in connection with other averments of the bill, they can not be regarded as merely impertinent. It is averred that the wife of E. O. Zadek is a legatee under the will, that just prior to the death of testatrix she (testatrix) held and owned a mortgage on Zadek' — that the executor, Bromberg, omitted this mortgage, and the debt secured, from his inventory, “and that the same has never been paid, or satisfied, and that if said mortgage was given away or otherwise disposed of by testatrix, complainants charge that it was so given to some of the defendants to this bill of complaint, and that the said Susan F. Rouse was induced to give or dispose of said mortgage by the exercise over her of undue influence by the parties to whom the same was given, or by some person connected with or interested in them, and that such gift or disposition of said mortgage and the security therefor, was null and void as to said Susan Rouse, and as to complainants, her heirs at law and next of kin.” Mrs. Zadek is a legatee under the will and a defendant to the bill. The bill does not charge that Bromberg, unduly influenced Mrs. Rouse to give away the Zadek mortgage, or other property, but it states his relationship to Mrs. Rouse, his influence over her and her confidence in him. It then states that Mrs. Zadek is his sister, and then charges that if the property was given away, it was given to some of the defendants. (Mrs. Zadek is one of them) and that the gift was induced by undue influence, exercised by the donee, or some person connected with the donee. If, in response to the interrogatories propounded in the bill on proof, it should be developed that the Zadek mortgage or other property was given to Mrs. Zadek or other defendant by Mrs. Rouse in her life time, it would be permissible under the averments of the bill, to introduce evidence that the donor had been unduly influen cedby Bromberg, and in order to procure tbe gift, be bad taken advantage of ber confidence in bim, and bis relation to ber as ber legal adviser. Tbe statement under consideration in tbis aspect of the bill can not be regarded as impertinent matter, to be stricken out on motion, and tbe pleader having failed to aver definitely that Bromberg exercised undue influence in procuring tbe gifts, if they were made, tbe failure to make tbe charge more specific was subject to demurrer. If it was not tbe purpose of tbe pleader to make tbis use of tbe averment, and if in fact, be regards it as merely impertinent, be should on bis own motion, strike it from the bill. Standing in tbe bill, it is a menace to tbe defendant, and it is bis legal right to clearly understand tbe purpose for which it is intended.

"We are of opinion that the cause of demurrer directed to tbis feature of tbe bill, was well taken, and tbe court erred in overruling it. Tbis is tbe only error we find in tbe record. Tbe affidavit seems to be a substantial compliance with section 2025 of tbe Code, which provides, in what cases an executor may be required to give bond as such, though exempted by tbe will from giving bond. Tbe bill is not one for discovery only, and tbe demurrer to tbe bill, because not sworn to, was properly overruled. — Code, § 3424, and authorities cited to the section.

Tbe demurrers filed by tbe respondent, Alexander, are not before us for revision, and are not considered. Bor tbe error pointed out tbe case must be reversed.

Reversed and remanded.