Tygh v. Dolan

| Ala. | Dec 15, 1891

MoCLELLAN, J.

It can not be doubted that the plea to the jurisdiction of the Probate Court was sufficient to present the issue whether the Chancery Court had taken jurisdiction of the administration of Thomas Dolan’s estate. All that is necessary to such a plea, we apprehend, is that it should state the facts that a bill invoking the jurisdiction of tlie Chancery Court has been filed therein, and that court has assumed the exercise of such jurisdiction. Whether the bill to that end is sufficient, is a question which properly arises on the trial of the plea. It can not be necessary that such plea should set out the bill in extenso; and to hold the plea here insufficient would logically lead to such requirement. There was no error in the rulings of the lower court on the motion and demurrers which were addressed to the sufficiency of the plea.

The only other action of the Probate- Court which this record presents for review is its judgment sustaining the plea on the evidence. And the only argument made against the correctness of that action really admits that the Chancery Court had acquired control of the administration generally, and thereby ended the jurisdiction, in a general sense, of the Probate Court. Indeed, the appellants having themselves not only submitted to, but affirmatively invoked the interposition of equity by a cross-bill, were in no position to deny the general jurisdiction of the Chancery Court. But the contention is, that the bill does not specifically pray the Chancery Court to take control of that part of the administration having reference to the setting apart of lands in lieu of homestead to the -widow, and hence that as to that matter the jurisdiction of the Probate Court remained intact. If it were .conceded that the bill made no reference to this particular part of the administration, the conclusion sought to be drawn from that fact can not be sustained. It needs no argument, and no citation of authority, to show that the setting apart of homestead, or lands in lieu of homestead, is as much a part of the administration of an estate, as much in the way of settling the affairs of the decedent, and disposing of property left by him as the law prescribes, as any other act the personal representative and the courts may do in the administration. And when an administration is removed into the Chancery Court for any purpose, or in any part, it is there in whole, and for all purposes. There can be no splitting up of an administration any more than any other cause of action; it is one proceeding throughout, in a sense, and the court having paramount jurisdiction of it must proceed to a final and complete settlement.

But, aside from the consideration that the argument for appellants is addressed solely to the proposition that a part of the administration, that part which they desired the Probate Court to act upon, was not removed into the Chancery Court, and looking to the bill to determine whether that court really bad jurisdiction at tbe time tbe Probate Court so held, tbe conclusion must be that tbe ruling assigned as error was proper. Tbe bill makes a case in respect of tbe widow’s dower right, of wbicli tbe Probate Court bas no jurisdiction. It alleges that dower can not be assigned by metes and bounds, and thus makes a case for exclusive equity jurisdiction.— Wood v. Morgan, 56 Ala. 397" court="Ala." date_filed="1876-12-15" href="https://app.midpage.ai/document/wood-v-morgan-6509526?utm_source=webapp" opinion_id="6509526">56 Ala. 397.

There is no error in tbe record, and tbe judgment of tbe Probate Court is affirmed.