Hardwick v. Hardwick

51 So. 389 | Ala. | 1909

McCLELLAN, J.

That an heir or distributee of an estate, in course of administration in the probate court, before that court has taken steps for or entered upon fiual settlement thereof, may invoke the jurisdiction of equity in the administration of the estate, and hence its removal thereto from the probate court, and so without assigning any other or special ground of equity jurisdiction therefor, has been long and repeatedly decided here. The suit is not of the class prohibited by the statute. — Code 1907, § 2893; Code 1896, § 331; St. John v. St. John, 150 Ala. 237, 43 South. 580.

In this case the court proceeded on the theory that the original hill for- removal of the estate, wherein it was prayed that a sale of the realty and personalty left by the decedent be had for distribution (whether the averments in this particular were sufficient, if necessary, is not considered or decided, the conclusion, as will appear, avoiding the necessity), gave the court of chancery jurisdiction of the entire cause, and hence power, under its practices, to order the sale of lands for distribution of the proceeds among those entitled, without observing all the statutory requirements prevailing, in similar cases, in the probate courts. In Roy v. Roy, 159 Ala. 555, 48 South. 793, notwithstanding the writer’s humble insistence to the contrary on reasoning therein set down, this court declared Code 1896, § 157, was the sole authority for such sales, and ruled that the statutory requirements- applicable to such proceeding. in the probate courts bound the chancery courts, and a failure to observe them rendered the decree of sale erroneous. — Sims’ Chan. Practice, §§ 662, 663. The effect, of course, of the decision, is to compel, in order to invoke equity’s jurisdiction to order such a sale, the filing of a petition as must be done in the probate court, and the taking of subsequent steps as in that court. The court struck the petition of the administrator from the-docket, and granted the order of sale on the theory before indicated. Accordingly, the decree is reversed, as. upon the authority of Roy v. Roy, supra, and the causéis remanded.

Reversed and remanded.

Dowdell, C. J., and Simpson, and Mayfield, -TJ.,, concur.