Sullivan v. Lawler

72 Ala. 68 | Ala. | 1882

BBICKELL, C. j.

While adhering to the general rule, that next of kin, or distributees, can not, in the absence of an administration duly granted, maintain suits at law or in equity for the mere purposes of distribution, nor, in the absence of special circumstances, maintain suits for th'e collection of personal assets; yet, in exceptional cases, when it is clearly and affirmatively shown that, if there was an administration, the only duty attaching to it would be distribution, courts of equity in this State have been accustomed to dispense with the administration, entertain suits by next of kin, and decree distribution directly to them.—Fretwell v. McLemore, 52 Ala. 124.

Within this exception it is insisted that the present bill is brought, in which the next of kin of deceased legatees join with the surviving legatees, praying a settlement of the testator’s estate, and distribution to them directly.’ The deceased legatees were all probably adults — three of them certainly were; and upon information and belief it is averred, that upon the estates of three no administration had been taken, and that no debts exist against them. The other deceased legatee has personal representatives, who are made defendants, and there are debts existing against him. The allegation that there is no administration, and no debts as to three of the deceased legatees, is very general, and is made expressly, not upon knowledge of the facts, but upon information and belief, without any indication that the information was obtained from persons having knowledge, or the means of acquiring lmowlege of the facts. It would be hazardous for a court of equity to depart from its general rules, upon an allegation so general and unsatisfactory, and render a decree which the parties affected by it can not safely obey, and which, so far from quieting, may become the fruitful source of future litigation. For, if an administrator should be appointed subsequently, he would not be bound by the decree, and it would not protect the parties against whom it is rendered, so far as the claims he could rightfully assert would be concerned.—Gardner v. Gantt, 19 Ala. 666.

But there is yet another fatal defect in parties to the bill. 'There is an administration of the estate of Jesse Lawler, a deceased legatee, whose next of kin are joined as complainants, while the administrators are made defendants. It is obvious, -the administrators only can sue for and recover the legacy of Jheir intestate. As well could the next of kin maintain a suit for the recovery of a debt due the intestate, wresting it from the due course of administration, as to maintain the present .suit.

The bill also seeks the recovery of debts due the testator, without the averment of fraud or collusion between the debtor and his personal representatives. The debtors of a decedent can not properly be made parties to a bill against the personal representatives, by creditors or legatees, unless it be averred that there is collusion between them and the personal representative, or that he refuses to collect the debts. — Story’s Eq. PI. § 178. There is no such averment found in the bill.

We are satisfied that the demurrers, so far as sustained by the ■.chancellor, were well taken; and the'decree must be affirmed.