Tillery v. Tillery, 46 So. 582

Tillery v. Tillery

46 So. 582 | Ala. | 1908

SIMPSON, J.

The bill in this case was filed by the appellee, as the sole heir of John 0. Tillery, against the appellants, Thomas J. Tillery, as administrator ot said John C. Tillery, and J. F. Ford, who is the surviving partner of a firm composed of said decedent and said Ford. The bill seeks to remove the estate of said John C. Tillery from the probate into the chancery court, and also to require Ford, as surviving partner, to make a complete return and settlement of said partnership affairs. Separate demurrers to the bill were filed by each of said defendants, which were overruled by the. chancellor, and separate assignments of error are here made.

The ground of demurrer insisted on by both appellants, that the bill fails to show that complainant is the legitimate child of the decedent, is without merit. The bill alleges that “oratrix is the sole heir of the said John C. Tillery, being the daughter and only child of *497said John Tillery, deceased.” In addition to the fact that this is a distinct allegation of heirsbip, the second clause being merely explanatory of the decree of relationship, the word “child,” in the absence of any facts or circumstances indicating a different interpretation, carries with it the meaning of legitimate offspring. Black’s Law Dict. p. 200; 7 Cys. 124, 125; 2 Words & Phrases, pp. 1123, 1124; Hill v. Cook, 6 L. R. Eng. & I. App. 265; Cromer v. Pickney, 3 Barb. Ch. (N. Y.) 466; Gardner v. Heyer et al., 2 Paige (N. Y.) 11; Overseers of Poor v. Overseers of Poor, 176 Pa. 116, 34 Atl. 351; Crook, Judge, etc., v. Webb, 125 Ala. 457, 463, 464, 28 South. 384.

It is next insisted by the appellant Ford that he is improperly joined as a party defendant. The partnership assets, in this case, consisted entirely of personal property, and upon the death of one partner said assets vested in the surviving partner for the purpose of winding up the business, subject to the right of the legal representative of his deceased partner to call him to a settlement. Said surviving partner had no interest whatever in the administration of the estate of his deceased partner, and the administration of said estate had no connection with the settlement of the affairs of said partnership, except that the personal representative had the same right to call said surviving partner to a settlement as he had against any other creditor of the estate. It cannot be said that the seperate interests of the two defendants “are all connected with and come out of the single object of the suit — not dividing the remedy into two suits.” — Adams v. Wilson 137 Ala. 632, 635, 34 South. 831. The general rule is that “the personal representative is alone authorized to demand, receive, collect together, and disburse and distribute the personal assets and effects of an estate.” — Sullivan v. *498Lawler, 72 Ala. 72, 78. The administrator having the legal title to the personal assets of the estate, holding them in trust for purposes of administration, and being charged with the duty of collecting the debts due the estate, the heir could not institute any proceeding for the enforcement of any claim which the estate held against others or bringing its debtors to a settlement, without showing either that the administrator refused to do so, or was in collusion with such debtor, or occupied a position antagonistic to his duties as administrator. — Blackburn et al. v. Fitzgerald, Adm’r. et al., 130 Ala. 584, 30 South. 568; Bailey v. Selden, 112 Ala. 594, 605, 20 South. 854; Vincent v. Martin, 79 Ala. 540, 543; Baker, Adm’r. v. Mitchell et al., 109 Ala. 491, 494, 20 South. 40. Consequently, the court erred in overruling the demurrer of said Ford.

The decree of the court, in so far as it overruled the demurrer of the appellant Thomas J. Tillery, as administrator, is affirmed; and in so far as it overruled the demurrer of the appellant J. F. Ford the decree of the chancery court is reversed, and a decree will be here rendered sustaining said demurrer.

Affirmed in part, and in part reversed and rendered.

Tyson, C. J., and Haralson and Denson, JJ., concur.