Ligon v. Ligon

105 Ala. 460 | Ala. | 1894

McCLELLAN, J.

It is well settled, and we do not understand it to be controverted in this case, that a bill by legatees or distributees for the removal of the administration of an estate into the chancery court need not assign any ground or special cause for equitable interposition. The settlement of estates of decedents is within the original jurisdiction of courts of equity, and our statutes conferring jurisdiction in that regard upon courts of probate, while they require executors and administrators to make settlements in those courts, unless some special ground necessitating the exercise of the larger powers and jurisdiction of chancery is shown, yet do not operate to divest or narrow the jurisdiction of courts of chancery, nor to clog its exercise by any conditions whatever, upon the reasonable invocation of the legatees or distributees of a decedent’s estate. — 3 Brick. Dig., 334, §§ 61, 62, 63; Harland v. Person, 93 Ala. 273; Cary v. Simmons, 87 Ala. 524.

It is equally well settled that, after the probate court has taken jurisdiction of the estate of a decedent for the special'purpose of a final settlement of the pending administration, there can be no removal of the administration into the chancery court even at the instance of the legatees or distributees, unless some ground for exclusive equity cognizance is shown — unless some fact is averred because of which the powers of the probate court are inadequate and a resort to chancery is necessary. Authorities supra.

No special ground of equity jurisdiction is averred in the present bill exhibited by the heirs and distributees of the estate of Wm. M. Ligón, deceased, for the removal of the administration thereof into the chancery court — no fact is averred necessitating the invocation of chancery jurisdiction. Whether the complainants are entitled to the relief they pray — the removal of the estate into chancery and its final settlement there — depends, therefore, upon the inquiry whether the jurisdiction of the probate court for the purposes of final settlement had attached and was in exercise at the time of bill filed. The status of the administration at the time in question was this : Rebecca A. Ligón, the administratrix, had, upon the application of the distributees of the estate, been required, within a time prescribed in the order, to give an additional bond for the faithful administration of the estate, and this order she had failed to comply with. Thereupon an order was entered March 23, 1891, removing her from the office of administratrix of the estate, revoking her letters of administration and requiring her “to make settlement of her administration of said estate as required by law.” This bill was filed on the second day of April following, no steps having in the meantime been taken by the administratrix to comply with the law or the order of the court for final settlement. On the 1st day of May, 1891, a month after the filing of the bill, the administratrix filed her accounts and vouchers for a final settlement; and the probate court proceeded to make such settlement and to discharge her, notwithstanding the pendency of the bill, on the theory that jurisdiction to that end had attached upon the making of the order of March 23, 1891. In a broad sense, the probate court which issues letters has a general jurisdiction over the administration of the estate and the settlement thereof, but confessedly this general jurisdiction is not of a character to preclude the assumption of jurisdiction by the chancery court at the instance of legatees or distributees whether they show special equities or not. The jurisdiction of the probate court which will put the legatees and distributees to a showing of special grounds of equitable cognizance as a condition precedent to the removal of the administration is of a special sort, and must be called into exercise by something done in respect of a final settlement. What is necessary to be done to put that special jurisdiction into exercise is the question now before us. When does the special jurisdiction of the probate court for final settlement attach, or, more accurately, is called into exercise?

In Gamble v. Jordan, et al., 54 Ala. 432, it is held that this jurisdiction is called into exercise, so as to cut off the invocation of chancery jurisdiction in the absence of special equities, when the administrator files his accounts and vouchers for a final settlement and a day is appointed for the settlement. And in James et al. v. Faulk et al., 54 Ala. 184, it is said that' the administration must be l'emoved into chancery at the instance of a legatee at any time before a “proceeding" for final settlement has been commenced in the probate court, citing McNeil v. McNeil, 36 Ala. 109. That a citation to final settlement in the case of an administrator who has resigned or been removed is not the assumption and putting into exercise of the j urisdiction of the probate court is directly held in the case of Glenn’s Admr. v. Billingslea, 64 Ala. 345, and this is put upon the ground that on the resignation or removal of an administrator the statute itself — Code, § 2175 — provides and requires that he must within one month file his accounts, voucher &c. for, and proceed to make, final settlement, and that no citation to him to make settlement is necessary or is provided by law. This is equally true in respect of an order, such as was made in this case, requiring the administrator to make settlement as required by law. There is no authority of law for the entering up of such order ; there is no occasion for it, since the command which it attempts to lay upon the administrator has been already laid upon him by the law itself, and it does not even import on its face the exercise of the court’s power, but is merely a mode of calling attention to the requirement of the statute. It is without force or effect, and, like the unauthorized citation, can not be considered the commencement of a proceeding for final settlement. In this case, therefore, all that had been done when the bill was filed was the removal of the administratrix. The law thereupon required her to file her accounts and vouchers, list of distributees &c. for final settlement within one month. But she had not taken these steps and ho proceeding had beencommenced in the probate court for a final settlement. The case is even clearer for the complainants than that of Glenn’s Admr. v Billingslea, 64 Ala. 345, supra. Applying the reasoning of that case, whether it be dicta as insisted (we think erroneously) by appellants’ counselor not, to the case at bar, we are driven to the conclusion that the jurisdiction of the probate court for the final settlement of this estate had not attached and was not in exercise when the present bill was filed, and that therefore under its averment the complainants were entitled to have the administration of the estate removed into the chancery court. It would seem, indeed, that the final settlement, the assumption of jurisdiction of which will exclude chancery jurisdiction in the-absence of special equities, must be a final settlement of the estate and not merely the final settlement of the administration of a particular representative.

We have deemed it proper to express the foregoing views, hoping thereby to facilitate this cause in the court below, notwithstanding our further conclusion that there was no decree in this case from which the present attempted appeal would lie, and the consequent necessity we are under to dismiss the appeal. There was indeed no decree except on the demurrers, and the time for appealing from that decree separately had lapsed before this appeal was taken. The chancellor in effect held that the complainants would be entitled to the relief prayed in the event they should have an administrator de bonis non appointed and made a party to the bill. This was not and could not be a final decree even if it be taken as having gone on to declare the precise relief that should be granted upon the appointment and coming in of the administrator de bonis non. And the appeal must, therefore, be dismissed.

Appeal dismissed.