47 Ala. 556 | Ala. | 1872
This is a bill in chancery to enforce the payment of a pecuniary legacy. There was no defense whatever interposed in the court below. The case was submitted upon the bill, exhibits, and decree pro confesso against all the defendants. But on the hearing it was dismissed by the learned chancellor without prejudice, because it was not alleged that the debts of the estate had all been paid. From this decree the complainant in the court below appeals to this court. '
There can be no doubt that chancery will take jurisdiction to enforce the payment of a pecuniary legacy. This is a branch of its original jurisdiction which has never been
Generally, such, a bill should show ihat the debts of the testator have all been paid, as these are a charge upon the whole property of the deceased. — Revised Code, § 2060; 7 Ala. 906. But as courts of chancery will take notice of the effect of the statutes of limitations and non-claim in tbeir proceedings, where the bill shows that the administration has been pending for ten years before the commencement of the suit in chancery for the recovery of a specific legacy, and that the executor has received large amounts of the assets of the estate, which he has converted to his own use, and. used in the payment of the residuary legatees, to the neglect of a minor special legatee, the bill should not be dismissed, when it appears that the special pecuniary legacy had been demanded, and its payment postponed without excuse, for ten years after the grant of letters testamentary, because there was an omission to allege in the bill that all the debts of the deceased had been paid. The omission of this allegation in such a case does not defeat the jurisdiction of the court, and render the decree void. If there is no defense interposed by answer, plea, or motion to dismiss, the court has jurisdiction, and the chancellor should not, mero motu, repudiate the cause ; but he should direct the bill to be amended, or proceed to decree the relief appropriate to the facts stated in the bill. — Rev. Code, §§ 3327, 3356; Hogan et al. v. Smith et al., 16 Ala. 600. The English rules and orders of practice in courts of chancery are not peremptory with us, but only advisory. — Chan. Rules, No. 7; Rev. Code, p. 824. The great purpose of our whole judicial system is, that “ right and justice shall be administered without sale, denial or delay.” — Const. Ala. 1867, Art. I, § 15. Under such a system, the coirnts should give the largest scope to our very liberal statutes of amendments. I, therefore, think, that under the facts of this case, and the state of the pleadings, the cause should not have been dismissed in the court below. But, as the defendants may have relied upon the.
The judgment of the court below is reversed, and the cause is remanded, at the costs of the appellees, in this court and in the court below.
