The bill in this case was filed by Esther Greenliood, a'child of Morris Greenliood, deceased, as one of the legatees under the will of deceased and a distributee of his estate. It was exhibited against Helena Greenliood, as an individual and as executrix of the last will and testament of said deceased, and against all the other legatees and devisees under said will and distributees of the estate of said deceased.
The purpose of the bill was to have the further administration of the estate of Morris Greenhood, deceased, removed into the chancery court of Mobile county, and to require the executrix to make bond.
It is the law of this State that any person, entitled to share in the distribution of an estate, lias the right to have tire estate administered in a court of equity without assigning any special equity for transferring the estate to such a court. — Bromberg v. Bates, 98 Ala. 621, and authorities there cited; Ligon v. Ligon, 105 Ala. 464; Baker v. Mitchell, 109 Ala. 490.
The bill shows that Morris Greenhood, on the 9th of August, 1886, was a resident citizen of Shubuta, in Clarke county, Mississippi; that he owned valuable personal and landed estates in Mississippi and in the city of Mobile, Alabama; that on said day, he made his last will and testament, in which he named Helena Green-hood as executrix without bond; that after the making of said will he moved to and became an inhabitant of the
It further appears that, before the first day of May, 1891, on the application of the said Helena Greenhood, said will was duly admitted to probate in the chancery court of Clarke county, Mississippi, a.court of competent jurisdiction of such matters, and letters testamentary were issued thereon by said court to Helena Green-hood, without bond.
On the first day of May, 1892, the testatrix had converted all of the property of the estate of her testator, in the state of Mississippi, into money and transferred it to Mobile county into the jurisdiction of the probate court of that county.
It is averred that no settlement has been’ made by said estate in the courts of Mississippi. It is further averred in the bill that the said, executrix, in violation of the terms of the will and of complainant’s rights under the will, has appropriated and is appropriating all the estate of her testator which she has lawfully converted into money, — as well as all the proceeds of property which she had unlawfully sold, — to her own use and to that of her children, Julius- and Bertha.
The first point of attack made by the demurrer to the bill is, that the chancery court at Mobile has no jurisdiction over the settlement of the administration of so much of the estate as was located in the state of Mississippi. The argument is, that “All of the property of the decedent, though situate in several States, constitutes but one estate; but the several administrations in. different jurisdictions are separate and distinct, and the court of the domicil State has no jurisdiction over the administration of the assets situate in the State where an ancillary administration has been taken out, until a final settlement of the ancillary administration has been had in the State having jurisdiction over it.”
“This question is left undecided in Calhoun v. King, 5 Ala. 523. The precise point was not decided in Julian v. Reynolds. 8 Ala. 680, but wq think the effect of that case is to sustain the principle asserted by us. — See, also, Williamson v. Branch Bank, 7 Ala. 906.”
The other cases cited by appellant’s councel do nor support the position -raised by the demurrer. The facts of the case in hand clearly differentiate it from those cases. It seems to us that the facts alleged in the bill bring the case directly within the influence of the case of Colbert, v. Daniel, supra; and the ground of demurrer under consideration was not well taken.
The bill .alleges that the decedent died intestate as to his personal property situate in Mobile county, and that, the executrix has sold and disposed of such personal property without any order of court, and that all such sales'were void; that much of the property so sold, has been put beyond, the reach of recovery by or for the parties interested therein, and is wholly lost to said estate, and that for all such property said executrix should be held to account as for an unlawful conversion thereof.
When an executor converts' iiroperty belonging to his trust estate, it is unquestionably true that the cestui que trust may elect to sue for the property and recover it, or ratify the illegia.1 disposition of the property and charge the executor with its value. But it would seem that this doctrine of election would have no field of operation if the property had been put beyond the reach of recovery. In such ,a. case the only remedy left to fie cestui que trust would be to charge the trustee. Furthermore, an executor or administrator holds the legal title to personal property of the estate and he cannot avoid an illegal sale made of it by himself; he would be liable for the proceeds, or for a devastavit.- — Woods v.
The demurrer to that part of- the bill relating to the partial settlement made by the executrix was without merit. The equity of the bill does not rest upon the right to surcharge or falsify the partial settlement. As was said in Baker v. Mitchell, 109 Ala. 494: “It is of no avail that the 'several matters referred to in the bill, which are to be settled in the course of administration, are not fully enough stated. The complainant being a distributee of the estate need not have assigned any reason for seeking the aid of the equity court. Once in chancery, the proceedings will be properly adjudicated to all matters appertaining rightfully to the administration, without reference to any alleged insufficient statements of the bill. They do not constitute ground for just complaint by defendant?-, since they serve to give notice, in part at least, of what is required to be settled in the'administration.”
We have given consideration to all the assignments of error, and having found no error in the record the decree of the chancery court overruling the demurrer to the bill is affirmed.
Affirmed.