92 Ala. 513 | Ala. | 1890
-The demurrer to the bill, brought by the appellees to enforce a lien on land for unpaid purchase-money, is founded on the ground, that complainants do not show in them
When a person dies intestate owing no debts, and the only duty devolving on an administrator is distribution, the equity of those entitled to succeed to the personalty is perfect; and in such case a court of equity wall dispense with an administration as being a “useless ceremony,” and entertain a bill based on the equitable title of the distributees. — Fretwell v. McLemore, 52 Ala. 124; DeBardeleben v. Stoudenmire, 82 Ala. 574; Glover v. Hill, 85 Ala. 41; Stevenson v. Anderson, 87 Ala. 228. The general averment that the intestate “left no debts unpaid, and t heredare now outstanding no debts against his estate,” is broad and comprehensive enough to-embrace liabilities of every character and description, determinate and contingent; but, in order to protect defendants against a recovery brought by an administrator subsequently appointed, satisfactory proof must be made that there are no subsisting liabilities against the estate of any character. If complainants are the only persons among whom the personal property is to be distributed, their right to file the bill, on the ground that an administration is unnecessary, is sufficiently averred.
Notwithstanding this, complainants must show that they are the persons, and the only persons, deriving title to the note by succession. The only averment showing their title is, that “James R. Miller has departed this life, intestate, leaving your orators his only heirs at law.” The term heir, having acquired a definite and fixed meaning at common law, when employed
In Ballard v. Jones, 80 Ala. 32, it is said: “Our statutes nowhere abrogate the established rule of pleading, that where one claims by inheritance, he must, in general, show how he is heir, and if he claims by mediate, not immediate descent, he must also show the pedigree.” The note sued on being personal property, it is essential to complainants’ right to sue, that the bill should aver the facts constituting them the distributees of the estate. It fails to aver in what State Miller died. If in this State, the bill should aver that there is no widow, and that complainants are either his children or next of kin, and in what manner. If at the time of his death he was a resident of another State, the bill should set forth the facts allowing that complainants are entitled to the note sued on under the statutes of distribution of such State. • In either case, the facts must be proved ; otherwise, a recovery in this suit would be no bar to a subsequent suit on the same cause of action brought by the persons entitled to succeed to the personalty. The averment in the bill, that complainants are the only heirs at law, is insufficient.
For the failure to aver the facts showing that complainants
Reversed and remanded.