59 So. 469 | Ala. | 1912
This bill was filed by Lula Graves, individually and as administratrix with the will annexed of the estate of Emma B. Seay, deceased, of whom W. J. Seay (appellant) is the surviving husband. The heirs at law and next of kin of the testatrix, as well as
The testatrix left no children; and the next of kin and heirs at law are sisters or brothers, or their descendants, of testatrix.
. It is averred that Lula Graves is the grantee of the rights, titles, and interests of all of the heirs at law and next of kin of Emma B. Seay, deceased, except three (who have each a one twenty-fifth interest in the estate), subject to the rights of the surviving husband and of her co-legatee, Emma Nell Graves, a niece of testatrix.
It appears from the averments of the bill that W. J. Seay had, prior to 1905, before testatrix’s death in January, 1911, carried on a mercantile business owned by and in the name of his wife, and with funds belonging to her; that he was insolvent; that he did not own thé business so carried on; that he was discharged as a bankrupt some time (not known exactly) before the death of his wife; that, as general agent for his wife, he sold said business in the year 1905, and “received theréfor the sum of, to wit, four thousand dollars ($4,000.00), or other large sum;” that he did not pay said sum, or any part of it, to his wife; that he retained the same and used a part of it in the purchase of real properties, the titles to which he took in his own name; that the remainder of the proceeds have been appropriated, in some manner, to his own use; that the estate of testatrix has an “equitable lien or trust in and to all of said property into which the money of the said Emma B. Seay was invested by the said W. J.
Seven interrogatories, seeking responses disclosing matters immediately bearing upon subjects of averments in the hill, are propounded to W. J. Seay.
The prayer is for a removal of the administration of the estate into the chancery court, no steps to a final settlement having been entered upon in the court of probate; that the court ascertain what property or rights, legal or equitable, were owned by the testatrix at the time of her death, which may be held by any of the respondents; that, if necessary, the court will vest the title as it may be advised should be done; that the estate be distributed among those so entitled; and for general relief.
At law the rule is that all parties having a joint interest must join as plaintiffs in the action; but in equity the general rule is that it is sufficient if all the parties interested in the subject-matter of the proceeding are before the court, either as complainants or respondents. —Parkham v. Aicordi, 34 Ala. 393, 73 Am. Dec. 457; Davis v. Vandiver & Co., 143 Ala. 202, 38 South. 850.
Furthermore, under sec. 3 of the act approved April 21, 1911 (Acts 1911, pp. 574, 575), Lula Graves, individually, was of the classes who are
As is apparent from the theory, purpose, and averments of the bill, the strict rules applicable to bills which seek discovery only are not applicable here.— Russell v. Garrett, 75 Ala. 348; Bromberg v. Bates, 98 Ala. 621, 629, 13 South. 557. The discovery which responses to the interrogatories propounded to W. J. Seay will afford is incidental to the major objective of the bill, and is based upon the particular averments thereof. The rules which appellant would invoke have operation in cases where discovery is the sole purpose of the bill.
The objection that the bill is multifarious, because the distribution of f-1,000 to the two legatees named in the probated will is sought, is without merit. Such distribution is of the essence of a complete administration. That is the subject-matter upon which the jurisdiction
The decree overruling the demurrer is affirmed.
Affirmed.