Cronk v. Cronk

142 Ala. 214

• Court: Supreme Court of Alabama
• Decided: November 15, 1904
• Status: Published

Opinion

TYSON, J.

Tlie hill in this cause, as amended, was filed by complainants who are devisees under the last will and testament of their deceased mother against the respondent individually and as executor to Avhom letters testamentary had been duly issued by the probate court of Mobile county. Its purpose, as clearly shown, by the amendment is tAVofold: to remove the administration of the estate out of the probate court, to the chancery court and to require the respondent to give security for the faithful execution of the trust reposed by the will and accepted by him.

The demurrer to the bill, as amended, Avhich Avas o.verruled, and of which complaint is here made, does not challenge or purport to challenge the 'sufficiency of the allegations to have the administration removed. And, for that matter, its averments in that respect could not successfully be.- — Bromberg v. Bates, 98 Ala. 621.

Its evident purpose is to raise the question of the sufficiency of the allegation Avith respect to the right of complainants to require respondent to give a bond for his faithful administration of the trust. But interposed as it is to the amended ..bill, ás a AVhole, and not to that I>hase of it indicated above, the decree appealed from must l)e affirmed, irrespective of Avhether the objections' pointed out by the demurrer be good or bad. — Houston v. Williamson, 81 Ala. 482, Beall & Caston v. Lehman, Durr & Co., 110 Ala. 446; Worthington v. Miller, 134 Ala. 420.

Affirmed.

McClellan, O. J., Simpson and' Anderson, J. J., concurring.