Morgan v. Gaiter

62 So. 731, 182 Ala. 322, 1913 Ala. LEXIS 479

• Court: Supreme Court of Alabama
• Decided: May 15, 1913
• Status: Published

Opinion

ANDERSON, J.

The original bill does not seek a vacation of the probate decree on final settlement, but simply asked that the imposter “Ollis Browning” be enjoined from collecting the amount decreed to the sole heir, John Gaiter, this complainant, who was falsely personated by the said “Ollis Browning.” As the said decree was in favor of this complainant, he did not need a decree of a court of equity to establish his identity or to enable him to collect said fund, and the trial court evidently sustained the respondent’s demurrer upon this theory.

The bill was then amended so as to correct two items of credit allowed the administrator upon his final settlement and not to vacate and annul the entire settlement, and this amendment to the bill was permissible.

The bill, as amended, comes within the influence of section 3914 of the Code of 1907, as it negatives notice to the complainant of the settlement and an opportunity to appear and contest said items and charges, that said items were greatly excessive, and were allowed because the imposter Browning consented to same. If the complainant can prove this, the chancery court has jurisdiction to correct same; for, if the allowances were excessive and only allowed because of the consent thereto by the impostor Browning, this was a fraud upon the court and the consent by this interloper to the allowance of said claim would not be binding on the complainant, or exonerate the administrator from having the matter reopened.

In order, however, to surcharge the administrator, the complainant should show that the allowances were greatly excessive, and that they were allowed because of error of law or fact.

The bill does not seek a recovery of the fee from Allen, and does not charge him with fraud or conspiracy in tbe allowance of tbe claim, and be was not therefore a necessary party.

It may be that so much of tbe original bill as was brought forward into tbe amended bill was demurrable, but tbe demurrers, as filed after tbe amendment of tbe bill, went to tbe whole bill, and not to this particular portion of same.

Tbe decree of tbe city court is affirmed.

Affirmed.

All tbe Justices concur, except Dowdell, C. J., not sitting.