Dolan v. Dolan

91 Ala. 152 | Ala. | 1890

COLEMAN, J.

The administration and settlement of insolvent- estates, under our statutes, constitute a system, and have justly been regarded as the continuation of one proceeding. The filing of a proper declaration and statement in the Probate Court gives the court jurisdiction, and all else up to. final settlement and disbursement follows under statutory regulation. We think such report of insolvency must be classed as the institution of proceedings in the Probate Court, which will exclude chancery jurisdiction, unless some special equitable grounds be assigned.

The above principles of law are declared in the case of Hill v. Armistead, 56 Ala. 120. Complainants’ bill shows on its face that the administratrix filed her petition and statement in the Probate Court, seeking to have the estate declared insolvent. Complainants, as heirs, contested this application; and, pending the issue of insolvency vel non in the Probate Court, the present bill was filed, asking, among other reliefs, that the administration be removed from that court to the Chancery Court.

The duty devolves upon complainants to show some, special equity for removing the cause to the Chancery Court. One ground of relief relied upon is, that the administratrix, wife of decedent, is proceeding in the Probate Court to have dower set aside and allotted to her; and the bill alleges the character of the property to be such that this can not be done bynietes and bounds, and the Probate Court has no jurisdiction, under such conditions. — Code, § 1910.

The bill directly charges, that the statutory separate estate of the widow at the time of the death of her husband, exclusive of the rents, incomes and profits, was and is equal to, or greater in value than her dower interest and distributive share in her husband’s estate, estimating her dower interest in said land at seven years rent of the dower interest. — Code, § 2354. On demurrer, this direct allegation must be considered as true; and the fact that the bill shows that the widow denies that she owns any other than an equitable estate, can not relieve the positive allegation in the bill that it is her statutory estate. The Probate Court has jurisdiction to determine whether the widow is entitled to dower. If she is not, no question of the assignment of dower can arise. If she is, and it can not be assigned by metes and bounds, the Chancery Court may then be invoked. Upon demurrer, the facts as alleged, which show she is-not entitled to dower, must be regarded as true.

There is no allegation in the bill which even suggests a difficulty in the way of the Probate Court, to determine properly the issue of insolvency vel non. Omissions from the inventory, ■or conversion of assets, are matters entirely within the jurisdiction of the Probate Court.—Shackelford v. Bankhead, 72 Ala. 477. There is nothing in the bill to show that the Probate Court can not try and determine the validity of the claim preferred by James Dolan. 'There is no equitable or other defense to this claim, averred in the bill, of which the complainants can not receive the lull benefit in the Probate Court, under the issue contesting the insolvency of the estate. Under the statute, the widow or minor children may retain the homestead until it is ascertained whether the estate is solvent or insolvent.—Code, § 2543. Construing section 2544 in the case of Jackson v. Rowell, this court declared, “a residence can not, at one and the same time, be an exempt homestead, so as to preclude the right of selection and claim of other lands in lieu ■of it, and yet, by reason of excess in value, not be exempt as a homestead, and thus preclude its selection as such.” 87 Ala. 689. The bill shows that decedent died seized of ■other property than his homestead, and although the bill alleges that no particular sub-division is of tiie exact value of two thousand dollars, it does not follow that no suitable and satisfactory selection can be made therefrom.

Several questions are discussed in the argument of counsel, which can not possibly arise if the estate is declared insolvent. 'This issue is now pending in the Probate Court, and it is fully ■competent to try every question presented under this issue.

The decree of the court below is affirmed.