Clark v. Eubank

65 Ala. 245

• Court: Supreme Court of Alabama
• Decided: November 15, 1880
• Status: Published

Opinion

STONE, J.

— When an estate is declared insolvent, there is an eminent fitness in having the settlement finished in the Probate Court, unless there is involved in it some question of exclusive equitable cognizance, which the Probate Court, by reason of its limited powers, is incompetent to adjudicate. Moreover, by the act of declaring an estate insolvent, the Probate Court acquires jurisdiction of the settlement, which precludes all interference by the Chancery Court, unless a special equity is shown. — Clark v. West, 5 Ala. 117; Watts v. Gayle, 20 Ala. 817. In the present case, the estate had been declared insolvent, and, according to the averments of the bill, the administrator has been twice cited to make a settlement, but has disregarded each citation. This averment proves, that the judge of probate is not only willing to move, but has actually moved, in the matter of bringing the administrator to a settlement. ■ The statutes make ample provision, and arm the Probate Court with ample power, to compel tbe settlement of administrations in that court. There is nothing in the bill which shows, or tends to show, that the Probate Court is not willing and ready to put those powers into exercise. If, however, he should fail or refuse to do so, he can be compelled to act by writ of mandamus. Lamar v. Comm’rs, 21 Ala. 772.

No greivance is complained of in the present bill, no act of mál-administration charged, the redress of which is not clearly within the jurisdiction of the Probate Court. That is fatal to the present bill . — McNeill v. McNeill, 36 Ala. 109; Stewart v. Stewart, 31 Ala. 207; Weakly v. Gurley, 60 Ala. 399.

The decree of the chancellor is reversed, the demurrer sustained, and the cause remanded to the Chancery Court, to be there dismissed, unless amended so as to give it equity.