114 So. 577 | Ala. | 1927
On the petition of Joseph H. Brewer, describing himself as "a distributee of the estate of Mary H. Sherrod, deceased," the judge of the circuit court of Lawrence county, sitting as chancellor, made an order that:
"The said estate of Mary H. Sherrod, deceased, be and the same hereby is removed from the probate court of Lawrence county, Ala., to the circuit court of Lawrence county."
Evidently, the chancellor conceived that he was acting under and in agreement with the authority of section 6478 of the Code (1923). The petition in response to which this order was made, as the recitals of the order showed, contained averments of the jurisdictional facts according to the requirements of the section and "ordered and decreed that the said estate of Mary H. Sherrod, deceased, be and the same hereby is removed from the probate court of Lawrence county, Ala., to the circuit court of Lawrence county, Ala.," and directed the register to transmit *54 a copy of the order to the probate judge of the county and to Henry D. Bynum, as administrator of the estate of Mary H. Sherrod, deceased.
Appellant's motion to vacate the order "removing the administration of said estate" from the probate court was overruled and that ruling is now, for one thing, assigned as error.
Upon the fact that the order was for the removal of "the estate," instead of "the administration of the estate," in connection with the strictness required in summary proceedings, appellant seems to hang the argument that the administration was not removed, and hence that the circuit court had no authority to proceed. The statute provides for a removal of the administration of estates from the probate to the chancery court — the circuit court sitting in equity — upon the sworn petition of one of the parties therein named, alleging merely that "in the opinion of the petitioner such estate can be better administered in the circuit court * * * than in the probate court," without more. We see no particular objection to the designation of the proceeding for removal as summary. It is ex parte. There must, of course, be a compliance with the terms of the statute in every essential particular, and it would have been more in keeping with that nicety of procedure, which had better be trimmed to meet every objection, if the court had ordered the removal of the "administration of the estate" instead of the "estate" merely, and yet we apprehend there is no possibility of misunderstanding the meaning of the order made, as appellant understood it when he came to move its vacation.
The more serious objection taken against the order is that it was made upon the petition of a person who was neither "heir, devisee, legatee, distributee, executor, administrator, or administrator with the will annexed," as the statute requires. Appellee Joseph H. Brewer described himself a distributee, as we have already noted. In fact, he was a distributee of a distributee who had died since the death of intestate Mary H. Sherrod; but, in that relation, he was interested in the distribution of the estate of Mary H. Sherrod. He was entitled under the statute of descents and distribution to participate in the estate being administered. He was, in our judgment, a distributee of the estate in a very proper meaning of the term and within the purview of the statute. It was so held in effect in Crawford v. Carlisle,
Jurisdiction, defined with reference to the subject-matter in controversy, is the power to hear and determine, including the power to issue process to enforce such judgment or decree as the court may render. 34 C. J. p. 737. If by questioning the jurisdiction of the chancery court appellant intends to suggest lack of due process in the matter of removal, we think we have answered that; but, in addition, we may suggest that there was no lack of opportunity to contest every order made and that appellant, appearing in the chancery court and taking part in its proceedings, made no question as to jurisdiction until the court made a decree lacking conformity with appellant's desires or his notion of right and justice. And, further, it may be observed that the order of removal in and of itself affected no property right whatever. It merely substituted a tribunal which had *55 jurisdiction to determine all possible controversies for a tribunal that had no power to determine equitable issues, if such should arise, and thus brought the administration within the control of a court better able to deal justly, adequately, and completely with all matters and questions involved. We do not see that any party interested in the administration of an estate should be heard to complain of this process.
Conforming to appellant's brief in that particular, we have referred to appellee as the distributee of a distributee. It does not affect the substantial rights involved to say that the fund about the distribution of which the parties are at issue came from the sale of real estate left by Mary H. Sherrod at her death and that appellee is the devisee of an heir of said deceased. The land was sold for division and distribution on appellant's petition. But, it appearing that there was litigation concerning a mortgage claim against a part of the land, appellant was, on his own motion, ordered to withhold an amount sufficient to discharge the mortgage debt, if its disputed validity should be determined in favor of the alleged mortgagee. Appellant reported to the court the expenses of making the sale, including $2,574.48 as commissions; but the court, on the exception of one of the parties in interest, following the mandate of the statute (section 5924 of the Code), reduced appellant's commission to $100, and ordered that the balance, $2,474.48, be retained "until the court shall [should] order a final distribution thereof." A much larger sum was ordered to be held to answer the result of the controversy over the mortgage. This procedure was not improper. Nelson v. Atkins,
Having regard for the chronological order of events, we note that the order removing the administration from the probate to the equity court was made on November 10, 1926. This was after the proceedings on the petition for the sale of land. But after the date mentioned the court, on motion of appellee, ordered a distribution of the said sum of $2,474.48, and this last order furnishes the burden of appellant's complaint.
It is said that the petition or bill for the sale for division was made on the authority of Sewell v. Sewell,
Some reference is also made to the fact that there has been no proof that the fund in question may not be needed for the payment of debts; but the proceedings in the matter of the sale of land is a sufficient answer to this suggestion. Nelson v. Atkins, supra. That contingency, it must be presumed, has been adequately cared for.
It may be conceded that the order for the retention, by appellant administrator, of the sum in controversy, transferred the fund to appellant, as administrator, acting at the time under authority of the probate court, and that the probate court had no authority to order its distribution until a final settlement of the estate. But the estate is now being administered in the equity court with all the jurisdiction of the probate court and its own besides. When the administration was removed in the circuit court in equity for any purpose, or in any part, it went there as a whole and for all purposes, and that court, having exclusive jurisdiction, must proceed to settle every question arising in the course of administration and to a final and complete settlement. Tygh v. Dolan, supra. Such being the case, we can find no satisfactory reason for holding that the court of equity may not now in the course of administration change any order improvidently made and distribute the fund among those who are entitled to receive it, or, whether the first order was improvidently made or not, there appears to be no sufficient reason in the present circumstances of the case why the appellant administrator should be allowed to retain the fund in question for his own personal convenience; for it is clear that no other purpose is to be served by retaining the fund.
The decree is affirmed.
ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur. *56