Powell v. Labry

Jan 12, 1922

6 Div. 546.

Reporters:: , ,
Before:: McOlellan

McOLELLAN, J.

[1] The hill as amended stood with Mary Lyman Stone Labry-as sole complainant. She is a daughter, heir at law, *118 and distributee of tlie estate of Robert I. Stone, deceased, wbo was a devisee under the will of W. F. Lyman, deceased. It is averred that complainant is a devisee under the will of said Lyman, deceased; that she “is entitled to receive the share” of said Stone, her father (now deceased), under the will of said Lyman. It is also averred that the estate of Lyman may be better administered in a court of equity, the probate court not having made final settlement of the estate of said Lyman. The amended bill seeks the removal of the administration into the court of equity. It is entirely sufficient for that purpose. Gen. Acts 1915, pp. 738, 739, and numerous decisions applying its provisions.

L2] At this stage, on appeal from ruling on demurrer to a sufficient bill for removal of the administration of an estate into equity, this court will not enter upon consideration of the construction of the will. Ashurst v. Ashurst, 175 Ala. 667, 670, 57 South. 442.

•The court below correctly assumed jurisdiction under the averments of the amended bill, and cannot, at this stage, be held to have erred or not to have erred in overruling special grounds of demurrer.

Affirmed.

ANDERSON, O. J., and SOMERVILLE and THOMAS, JJ., concur.