Cronk v. Cronk, 42 So. 450

42 So. 450 | Ala. | 1906

TYSON, C. J.

— This bill is exhibited by the devisees under the last will and testament of Mrs. Geneta M. Cronk, deceased, against James W. Cronk, who was by the will appointed executor, and to whom letters testamentary were granted by the probate court of Mobile county, where the will was admitted to probate. The purpose of the bills is to remove the administration from the probate court, .where it is now pending, into the chancery court, and to require the executor to give a bond for the faithful discharge of his duties. By the express provisions of the will the executor is exempt from giving bond, and power and authority is conferred upon him to sell or otherwise dispose of, in any manner and upon such terms as he may deem best, all property, real, personal, and mixed, owned by the testatrix at the time of her death, and to execute and deliver to purchasers conveyances without obtaining authority to do so from any court.

The respondent, prior .to the filing of the bill, had become a nonresident of this state, and was at the date of its filing a resident of the state of Georgia and possessed little or no means. It is also averred in the bill that complainants’ ultimate right to all the property, which consists of real estate and in which they have a remainder interest, the executor owning a life estate, will be endangered for want of security unless the respondent.be required to give the bond as prayed. .• It will be observed, if this be important, that the authority conferred upon the respondent by the will to sell or dispose of the property, if sold or disposed of pending his administration of the estate as executor, must be exercised by him as such. After a final settlement by him of his administration, the sale or disposition is by him as an individual. It is thus made to appear that a distinction is drawn in the will between the exercise of the power of discretion by him by virtue of his office as executor. and that of trustee. Section 67 of the code of 1896 confers upon these .complainants the right to require the respondent, as executor, to give bond upon showing their interest in the estate and “alleging that such interest is or will be endangeied for want of security.” It may be said that this section has application only to proceedings of the same nature as this when instituted in the probate court, and therefore does not apply to the present bill. The right conferred by the statute is one of mere form, but a substantial one, and there is no good reason why it should not be recognized and enforced in the chancery court when the'object sought to be accomplished is the same as would be tire one upon petition exhibited for the same relief in the probate court. When an administration is removed into the chancery court, that court is controlled and must follow the rules of law which would obtain in the probate court in the settlement of the ad-mini drafion of estates.—Sharp v. Sharp, 76 Ala. 312.

,Were this a proceeding by petition in the probate court, there would be no doubt of the sufficiency of the averments.—Allan v. Draper, 98 Ala. 590, 13 South. 529. The fact that it is a different jurisdiction can make no possible difference. We therefore hold that the allegations, of the bill, conforming as they do to the requirements of the-statute, are entirely sufficient, and that the demurrer was properly overruled.

Affirmed.

. Haralson, Simpson, and Denson, JJ., concur.