McConico v. Cannon

Supreme Court of Alabama

McConico v. Cannon

25 Ala. 462

CourtSupreme Court of Alabama

DecidedJune 15, 1854

StatusPublished

Cited by5 cases

This text of 25 Ala. 462 (McConico v. Cannon) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McConico v. Cannon, 25 Ala. 462 (Ala. 1854).

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Opinion

GOLDTHWAITE, J. —

The appellee was the administrator of Benjamim Mason, deceased, and Thomas Mason was one of the distributees. Thomas Mason having died while the estate was in process of administration, the Probate Court, instead of bringing his personal representative before it, rendered a decree, on final settlement, distributing his share directly among his chidren. After this decree had been rendered, the appellant, who was the administrator of said Thomas Mason, propounded his interest by petition, and was made a party to the decree ; and he now brings his appeal therefrom to this court.

The appellant, having an interest in the distribution of the estate, was properly made a party to the decree for the purpose of taking an appeal (Lees v. Browning, 15 Ala. 495; Watson v. May, 8 ib. 177); and we have repeatedly held, that where a person entitled to distribution of an estate dies, it is error to proceed to a final settlement without his personal representative. — Boyett v. Kerr, 7 Ala.9; Reynolds v. Reynolds, 11 ib. 1023; Hall v. Andrews, 17 ib. 40. That the omission to have the necessary parties before the court on the final decree, may be taken advantage of in this court, though not made in the court below, see Gould v. Hayes, 19 Ala. 438; McMaken v. McMaken, 18 ib. 576.

Let the decree be reversed, and the cause remanded.

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GOLDTHWAITE, J. —

The appellee was the administrator of Benjamim Mason, deceased, and Thomas Mason was one of the distributees. Thomas Mason having died while the estate was in process of administration, the Probate Court, instead of bringing his personal representative before it, rendered a decree, on final settlement, distributing his share directly among his chidren. After this decree had been rendered, the appellant, who was the administrator of said Thomas Mason, propounded his interest by petition, and was made a party to the decree ; and he now brings his appeal therefrom to this court.

The appellant, having an interest in the distribution of the estate, was properly made a party to the decree for the purpose of taking an appeal (Lees v. Browning, 15 Ala. 495; Watson v. May, 8 ib. 177); and we have repeatedly held, that where a person entitled to distribution of an estate dies, it is error to proceed to a final settlement without his personal representative. — Boyett v. Kerr, 7 Ala.9; Reynolds v. Reynolds, 11 ib. 1023; Hall v. Andrews, 17 ib. 40. That the omission to have the necessary parties before the court on the final decree, may be taken advantage of in this court, though not made in the court below, see Gould v. Hayes, 19 Ala. 438; McMaken v. McMaken, 18 ib. 576.

Let the decree be reversed, and the cause remanded.

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25 Ala. 462, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcconico-v-cannon-ala-1854.

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