Pierce v. Barbaree

193 So. 115, 238 Ala. 676, 1939 Ala. LEXIS 84

• Court: Supreme Court of Alabama
• Decided: December 21, 1939
• Docket: 4 Div. 91.
• Status: Published

Opinion

THOMAS, Justice.

The appeal is from decree overruling demurrer to the bill.

The right of removal of administration of estates from the probate court to a court of equity is stated in §§ 6478 and 8102 of Michie’s Code! The change in the statute, from Acts of 1911, p. 574, to that of the Act of 1915, p. 738, was first indicated in Dent v. Foy et al., 204 Ala. 404, 85 So. 709, and later in Irwin v. Irwin, 227 Ala. 140, 148 So. 846.

. The jurisdiction of a court of equity as to the right of assignment of dower and homestead was stated in Yarbrough v. Yarbrough, 200 Ala. 184, 75 So. 932.

The bill was filed by the personal representative and distributee of decedent’s estate for discovery against the widow, seeking assignment of homestead and dower in property worth moré than the right of homestead, and in property not susceptible for division and assignment of homestead, and for cancellation of conveyance of a part of decedent’s real properties.

- For foregoing reasons, demurrer was overruled to the bill when the right of removal was conferred by statute, and independent equity was shown under the aver-ments of the bill.

The case of Hopkins v. Crews, 220 Ala. 149, 124 So. 202, does not control, under the averments of facts contained in the bill and prayer for relief.

The decree of the circuit court is affirmed.

Affirmed.

ANDERSON, C. J„ and BOULDIN and BROWN, JJ., concur.