Marshall v. Gayle

58 Ala. 284 | Ala. | 1877

MANNING, J.

Through the sale of the land by Mrs. Gayle and her husband, to Marshall, for the money and notes given by him therefor, that part of her real property was converted into personalty. And the bill proceeds upon the idea that the complainants are entitled to all of this, in her stead. But, in the first place, there is nothing to show that the proceeds of the land sold to Marshall were not properly invested for tbe benefit of Mrs. Gayle, in being made payable to Milbouse & Shields to discharge the property of her separate estate- — perhaps of her equitable separate estate- — from the mortgage to them; and, secondly, according to statute law, “if a married woman, having a separate estate, die intestate, leaving a husband living, he is entitled to one half of the personalty of such separate estate, absolutely, and to the use of the realty during his life. — B. 0. § 2370. It is the statutory separate estate that is here referred to. And it follows, that there could be- no recovery of the money sued for, in this cause, for the distrib-utees of the estate of Mrs. Gayle, if such a suit were maintainable at all, unless the principal distributee, Beese D. Gayle, or the transferree of his share, if it has been transferred, were made a party to the suit. This not having been done, and no reason being shown for the omission, complainants, although there is no demurrer for that cause, could not be entitled to a decree in their favor. They claim the whole of a fund, while disclosing that another person, who is not made a party, plaintiff or defendant, has as good a title as theirs, to one half of it.

But this suit cannot be maintained, at all, bv the distrib-utees directly. The estate of Mrs. Gayle has been reported and declared insolvent, and is subject to administration as such. A list of the claims against it, was set forth with the report. So that not only are these credits to be collected from debtors, if the notes on which the present suit is founded be credits of the estate, but there are persons claiming as creditors, to be entitled to payment from the estate of debts due from it to them. It is only by an administrator, who succeeds to the title which was in Mrs. Gayle at her death, that the business of an estate so involved can-be conducted, its assets be gotten in, its debts be ascertained, and distribution be made.

There are, it is true, decisions of this court, all of which are referred to in Fretwell v. McLemore, (52 Ala. 124) from which it appears that there may be exceptional cases, in which a court of equity will permit the distributees of an estate to maintain a suit in respect to their interests in it, without requiring the appointment of an administrator. But, “the rule, to be extracted from these decisions, is, that a court of equity will dispense with administration and decree distribution directly, when it affirmatively appears that if there was an administrator, the only duty devolving on him, would be distribution.” Such is not the case presented by this record. It comes under the general rule applied by this court in Gardner v. Gantt (19 Ala. 658). And the legal requirement, tbat there must be an administrator for the settlement of an estate, in and concerning which there are so many contrariant and conflicting interests and claims, cannot be obviated by the difficulty complainants may have to encounter in procuring his appointment.

We are compelled to hold that the decree of the Chancellor must be reversed, and the bill be dismissed. But the dismissal is without prejudice to the bringing of another suit about the same matter.