60 Ala. 399 | Ala. | 1877
Appellee, Hammond, administrator de l)onis non, &o., of John Gurley, deceased, filed his bill of complaint in this cause, to remove his administration from the Probate Court of Madison county, into the Chancery Court. This is the principal object of tbe suit. It was brought March 30, 1877. In December, 1872, he had caused a citation to issue to Frank B. Gurley, his predecessor, and the first administrator of the estate, to settle his administration thereof, in the Probate Court. In January, 1873, Gurley “ filed his statement, account, vouchers, and list of heirs, for a final settlement; ” and the 28th day of February, 1873, was appointed for action by the court thereon. Then, and some few months afterwards, the matter was regularly continued, but nothing else was ever done in it subsequently. The proceeding seems to have been wholly neglected by both parties, and by the Probate Court, where it remains suspended. The settlement of this administration of Frank B. 1 Gurley is also by the bill sought to be drawn into this cause in the Chancery Court. But it does not properly constitute any part of the present suit. Gurley’s administration is a thing distinet from that of his successor, Hammond. The latter is entitled, certainly, to bring Gurley to a settlement, and to recover any assets that may remain in his hands unadministered; and under the statute, they will then become assets in Hammond’s hands. So, likewise, would he have a right to sue for, and recover from any debtor of the estate, tlie moneys due from him to it; and. they also would be assets for Hammond to administer. But no one would, therefore, suppose that a suit against such debtor could be comprehended in this bill, and carried forward pari passu, as a part of this administration cause, instead of being brought in a court of law. Yet such a suit would not be any more distinct from the present cause, than would be the proceeding to bring Gurley to a settlement. In eases of that kind, if litigation be necessary, it must be had in separate and independent suits against the parties supposed to be respectively liable. And it is only the fruits of them that Hammond would be required to account for in the settlement of his administration. Hence, whether the settlement of Gurley ought to be coerced in the Court of Probate, or in the Chancery Court, for which latter course no reason is shown, it is not in the present cause that it should be done. ,
The bill further alleges, that the $2,000 had been paid to said Bebecca, without complainant’s authority or knowledge, by the said Thomas P. and Frank B. Gurley, who now claim that they were thus subrogated to her right to demand and have said sum from complainant; and that, insisting thereupon, they and some other persons, who respectively bought lands of the intestate, at a sale thereof made by complainant under an order of the Probate Court, to enable him to pay debts, refused to pay him therefor, and assert a right to set off said $2,000 and interest, under an arrangement among themselves, against the price they bid for said lands; of which they retain the possession.
In respect to this sale, or offer to sell, complainant was authorized, it seems, by a decree of the Probate Court, rendered in April, 1874, upon his petition, to sell 782 acres, part of the lands of said estate, to pay its debts ; the sale to be made “ at public outcry, at the court-house door in said county, in manner and form as the law directs in such cases, after having first given notice for at least three successive weeks, of the time, place and terms of sale, in the Huntsville
The decree of sale made by the Probate Court is not alleged to be invalid, and does not appear to be so; though it is averred in the bill that “ said decree, by mistake, fails to show on what terms said land was to be sold.” A decree to sell lands to pay debts, without authorizing any credit, is, in effect, an order to sell for cash. It is only when time is to be allowed for the payment of the Avhole, or a part of the purchase-money, that it is necessary, though it is always advisable, that the decree should specify the terms of sale. See Eevised Code, §§ 2086, 2090, embraced in § 2456 of Code of 1876.
It is quite clear that complainant could not be allowed to prove that such an agreement and understanding as that he sets up was orally entered into with the judgment creditors mentioned, and thereby defeat the obvious effect .of a judgment against him as administrator. Evidently, too, if this were permissible, it would have to be done in suits brought by him against the several parties to such separate judgments alone, and not against them jointly, or against them and other persons. The averment referred to affords no foundation for such a joinder.
In Gould v. Hayes (19 Ala. 450), speaking of the jurisdiction of courts of equity in matters of administration, this court said: “ The remedy in the Orphans’ [now Probate] Court being cheaper and more expeditious than that afforded by Chancery, this court, at an early day, doubtless more as a matter of sound policy, than of strict legal requirement, was inclined to confine heirs, distributees, &c. of a deceased person’s estate, to the Orphans’ Court, in cases where the powers of that court were adequate to administer full relief.” It would be well, probably, if this policy had been more vigorously upheld. But, although the parties mentioned, the beneficiaries of an estate, are considered entitled to carry their cause into equity, at any time before the concurrent jurisdiction of the Probate Court over the settlement has attached, without assigning' any special reason for doing so; this privilege is not conceded to an executor, or administrator. When he undertakes to transfer the administration into chancery, he must assign a good equitaNe ground for asking that court to take jurisdiction of it.—Moore v. Lesueur, 33 Ala. 241; McNeill v. McNeill, 36 Ala. 115; Hill v. Armistead, at the last term. The statutes have provided for appeals from particular orders and rulings, as they from time to time are made by the Probate Court, in an estate undergoing administration, without suspending the power of that court over any other matter therein, and without removing the entire cause into the appellate court. — See § 3954 (2244), and those following it, in Code of 1876. But, when a cause in chancery is removed by appeal into this court, it comes here entire; and in the meantime, there is an inconvenient suspension of the jurisdiction of the Chancery Court therein, which hinders it from carrying forward the business of administration.—Burton v. Brown, 22 Grattan, 1; Moore v. Randolph, 52 Ala. 530.
After a careful consideration of the case, we are of opinion that, for the reasons assigned in the demurrers, the bill is without equity.
The decree of the chancellor overruling the demurrer is, therefore, reversed; and a decree will here be rendered sustaining the demurrer, dissolving the injunction obtained by complainant, and dismissing the bill, without prejudice to the filing of another.