63 So. 740 | Ala. Ct. App. | 1913
The appellees, who are the widow and minor children of W. M. Kelley, deceased, brought suit against appellant, defendant in the court beloAV, on a promissory note executed by the latter to one Brittonell, Avho transferred it to the said W. M. Kelley during his lifetime; it belonging to his estate at the time of his death. The complaint alleged and the proof showed that the said W. M. Kelley died intestate before the commencement of the suit and Avhile a resident of this state; that there had been no administration on his estate or setting aside of exemptions to his wícIoav and minor children; that the total value of the personal property, hoAvever, of which he died seised and possessed (including the note here sued on) Avas less than $1,000; and that the plaintiffs, respectively, Avere his Avidow and tAVO minor children, the latter having no guardian, but suing by their mother as next friend, and all, mother and children, claiming the note, together with the other personal property of the estate, as exempt to them under the provisions of section 4200 of the Code of 1907. There Avas verdict and judgment for the plaintiffs.
The point raised by defendant, by both a demurrer and a request for the affirmative charge, is that there Avas a misjoinder of parties plaintiff in that the right of action conferred by the statute for the recovery of the exempt personalty lies solely in the widow, when she is living, and not in the AvidoAV and minors jointly. In this contention Ave think him correct.- — Code, §§ 4201, 4202, 4203; Gamble v. Kellum, 97 Ala. 678, 12 South. 82; Howle v. Edwards, 113 Ala. 199, 20 South. 956; Jackson v. Wilson, 117 Ala. 435, 23 South. 521.
While it is true that under the statute cited the benefit of the exemption allowed is for both the widoAV and minor children, and that the title thereto is vested jointly in them, when the property has been set aside or
Without the right paramount in the widow to the possession of such property, this aim of the law could not be accomplished; hence it is that so long as she lives the statute deprives the minors of any right to the possession or disposition or division of the property, unless or until they grow up and leave the family, when the one or ones so leaving are entitled, under section 4200,
The rule is well settled that where there are joint plaintiffs none can recover unless all are entitled to do so (McLeod v. McLeod, 73 Ala. 42) ; therefore, since only the widow was entitled to recover in this case, the court was in error in not sustaining defendant’s demurrer to the complaint and in refusing the general charge requested by him.
The original complaint alleged that the plaintiffs’ intestate owned the legal title to the note sued on. A demurrer raising the point that this allegation was the statement of a mere legal conclusion was properly sustained, whereupon the plaintiffs amended so as to aver that the note (a commercial paper) was transferred by the payee, Brittonell, to plaintiffs’ intestate. The same demurrer was filed, but overruled. In overruling this demurrer, the court erred. Section 4985 of the Code provides that a negotiable paper, payable to order, as that here, must, in order to constitute the transferee 'the holder thereof (thereby entitled to sue), be indorsed and delivered to him by the holder. It has been held in the construction of a similar section of the Code (section 5158) that an allegation that the paper was “transferred” is not sufficient, against a demurrer, on account of a failure to allege the method of the transfer (the facts) in order that the court might see if the conclusion of the pleader in alleging a transfer was correct. — Land Co. v. Dromgoole, 89 Ala. 505, 7 South. 444; Jemison v. B. & A. R. R. Co., 125 Ala. 383, 384, 28 South. 51; 14 Encyc. Pl. & Pr. 519. All the counts, even as amended, were defective in this particular, except count 3.
For the errors before pointed out, the judgment is reversed, and the cause remanded.
Reversed and remanded.