Colquitt v. Gill

41 So. 784, 147 Ala. 554, 1906 Ala. LEXIS 219

• Court: Supreme Court of Alabama
• Decided: July 6, 1906
• Status: Published

Opinion

ANDERSON, J.

A bill may be filed in the chancery court by legatees or distributees for the removal of the administration of an estate into said court and need not assign any special or general cause for equitable interposition. — Harland v. Person, 93 Ala. 273, 9 South. 379; Cary v. Simmons, 87 Ala. 524, 6 South. 416; Ligon, v. Ligon, 105 Ala. 460, 17 South. 89. But after the probate court has taken jurisdiction of the estate of a decedent for the special purpose of a final settlement of the pending administration there can be no removal of the administration into the chancery court, even at the instance of the legatees or distributees, unless some exclusive ground for equity cognizance is shown or unless some fact is averred because of which the powers of the probate, court are inadequate and a resort to chancery is necessary.— Ligon Case, supra. The bill in the case at bar negatives the fact that the probate court has assumed jurisdiction for a final .settlement and contains .equity. It is unnecessary for the bill to aver that decedent died, or that the estate has assets in the county in which the administration is pending, as those are .facts referable to the issuance of letters of administration, and not to the removal of the, .administration from the probate to the chancery court, and section 55 of the Code 1896, applies only to the issuance of letters of.administration by the probate court. The bill sufficiently shows that it is filed by the distributees of the estate of C. C. Colquitt, deceased, against W. I), and J. F. Colquitt, the administrators.of said estate, and is not uncertain or ambiguous. The chancellor properly overruled the demurrer, and the motion to dismiss for want of equity and the decree is accordingly affirmed.

“Affirmed.

Weakley, C. J., and Tyson and Simpson, JJ., concur.