St. John v. St. John, 43 So. 580

43 So. 580 | Ala. | 1907

McCLELLAN, J.

This bill was filed by a legatee and devisee under the will of testatrix against other legatees and devisees and the executor of the last will and testameat of the testatrix, and prays the removal of the administratrix, and prays the removal of the administration from the probate into the chancery court and the sale of certain devised realty for the purpose of distribution among those entitled. It appears -from the bill that the executor qualified as such on May 28, 1906, and this bill was filed June 1, 1906. There had, of course, been no assumption by the probate court of jurisdiction to final settlement of the administration. It further appears that the personalty is ample to satisfy the indebtedness of the estate. It has been repeatedly declared by this court that the heir, distributee, legatee, or devisee majr, at any time before the probate court has taken steps for or entered upon the final settlement of the estate, invoke the concurrent jurisdiction of the chancery court over administration of estates,' and- that without assigning any other or special reason therefor.—Baker v. Mitchell, 109 Ala. 490, 20 South. 40; Teague v. Corbitt, 57 Ala. 537; 3 May. Dig. p. 235. And to a bill filed to this end it is the general rule, to which this cause presents no exception, that all persons interested in the estate in any manner are necessary parties thereto—Teague v. Corbitt, supra.

The proceeding, in either of these courts, to administer an estate, is usually an entirety, and should not be dissevered. Jurisdiction, adequate and adapted, should, as it will, progress to final settlement of the administration and the adjustment of the relative rights of the parties; so that, though some of the defendants here may be without interest in the realty involved, yet they have rights in other phases of the administration and other properties of the estate, and are properly brought in, that these rights may be established and enforced in one cause.—Teague v. Corbitt, supra.

Section 331 of the Code of 1896 does not relate to bills filed for the removal of estates from probate to chancery court. The prohibition therein expressed is opposed to actions instituted for the purpose of fixing liabilities on or against the estate. The point had been directly decided in Baker v. Mitchell, supra.

We do not construe the bill as seeking a sale of the realty in question, independent of the orderly administration of the estate, b-ut as invoking the courts’ action to that end in due course of administration. The demurrers were therefore properly overruled, and the decree appealed from is affirmed.

Affirmed.

Tyson, C. J., and Dowdell and Anderson, JJ., concur.