Simmons v. Knight

35 Ala. 105 | Ala. | 1859

R. W. WALKER, J.

In Graham v. Abercrombie, 8 Ala. 552, it was held, that the assignee of an integral share of an estate is entitled, on the final settlement of the administrator in the orphans’ court, to a decree in his own name for the distributive share assigned to him. This decision appears to have been approved in the subsequent case of Petty v. Wafford, 11 Ala. 148. In Smith & Lovelass v. Hall, 20 Ala. 777, the subject was carefully reviewed; and the majority of the court, while expressing a willingness to abide by the‘previous decisions just referred to, refused to extend them to a case in which the assignment was of anything less than an entire distributive interest. We consider this last case decisive of the one before us. Here, the decrees are rendered in the names of the heirs, for their distributive shares of the personalty; while for the distributive shares of three of the heirs in the proceeds of the real estate, sold by the administrator under an order of court, the decree is in favor of a third person, who, it appears, had (before the sale by tbe administrator) purchased at execution sale their interests in the land. We understand the case of Smith & Lovelass v. Hall, supra, expressly to condemn such a proceeding, and to deny the power of the probate court to render'a decree in favor of an assignee, unless the assignment is of the entire interest of the distributee in the estate. Of the propriety of that decision we do not entertain a doubt. The claim of the appellee, to a distributive share of the proceeds of the land, can readily Le asserted in another court, which, being invested with a larger jurisdiction and more extensive powers, is competent to afford him all the protection to which he may be justly entitled.

Decree reversed, and cause remanded.