Swope v. Swope

59 So. 661, 178 Ala. 172, 1912 Ala. LEXIS 414

• Court: Supreme Court of Alabama
• Decided: April 11, 1912
• Status: Published

Opinions

ANDERSON, J.

“Though the concurrent jurisdiction of the chancery and probate courts over the administration of estates has been repeatedly recognized, it is well settled that an administrator or executor must proceed in the probate court, unless there exists some special equity, which the probate court, because of its limited jurisdiction, is incompetent to administer, and that a court of equity will not, at the instance of the personal representative, take jurisdiction of his administration, unless it affirmatively appears that the probate court cannot afford adequate relief.” — Harland v. Person, 93 Ala. 277, 9 South. 380. When a special equity exists, or where the complications are so great that the probate court, by reason of its limited power, cannot give adequate relief, the settlement should be removed to the chancery court,. notwithstanding the personal representative had been cited by the probate court to make a final settlement or to show cause why he should not be removed, one or both. — Norton v. Norton, 94 Ala. 481, 10 South. 436; Ligon v. Ligon, 105 Ala. 460, 17 South. 89; Camble v. Jordan, 54 Ala. 432.

So the material inquiry in the present case is whether or not the appellee’s cross-bill, as amended, discloses such a special equity as would justify the removal of the settlement from the probate to the chancery court. We are of the opinion that it shows such a complication of affairs as would require the action of the chancery court to award full, complete, and final relief and adjustment. The appellee is not only the administrator in Alabama, but Tennessee and Mississippi as well, of the decedent, and the intestate owned property and owed debts in each of said states, and the bill avers the appropriation of funds from one state to settle up debts in another state, with ho credit to the administrator in one state for the funds used by him from the other state. The appellee is also the guardian of the children, as well as the administrator of the estate of their deceased father, and which involves dual authority, settlement, and distribution, and it would be expeditious, as well as less expensive, to close the whole matter at one time and in the one forum which has the authority to unravel complications, as well as to allow the appellee the equitable expenditures made for the benefit of the estate before becoming duly qualified as the administrator.

The cross-bill, as amended, contained equity independent of the original bill, and which grew out of the subject-matter of said original bill, and the dissmissal of the original bill did not per se carry with it the cross-bill, or authorize the dismissal of same because of dismissal of said original bill, as the record shows that the cross-bill was amended before the rendition of the decree dismissing the original bill. — Jones’ Case, 133 Ala. 212, 32 South. 643; Etowah Mining Co. Case, 121 Ala. 675, 25 South. 720; Ables v. P. & M. Ins. Co., 92 Ala. 383, 9 South. 423. There was no error in overruling the demurrers of the heirs to the amended cross-bill, or in holding the pleas insufficient, whether it was or was not necessary to pass upon the sufficiency of said pleas under the present statute. — Section 3115 of the Code of 1907.

The demurrer of C. 0. Swope to the amended cross-bill should have been .sustained. He was neither a necessary nor a proper party to the settlement of the estate, and it can serve no good purpose to lug him into the case, Avhich would only multiply complications, and perhaps prolong the time for making the settlement. The bills aver a winding up of the affairs of the firm some time ago, that the said C. C. Swope is hopelessly insolvent, that he turned over all the assets of the firm to the appellee, iu order that he might settle the partnership debts and close up the business, and that said debts were settled and the business was wound up finally. Therefore, it can serve no good purpose to reopen this partnership affair and thereby incur the expense and delay of attempting something Avhich the averments shoAv can produce no fruitful results. Moreover, as to the removal and settlement of this administration, all the heirs are necessary parties; but as to the settlement of the accounts of the late partnership, composed of the decedent and C. C. SAVope, this administrator and said C. C. Swope are the only necessary parties. The union of these separate and distinct matters in the bill renders it multifarious. — Harland v. Person, 93 Ala. 277, 9 South. 379; Seales v. Pheiffer, 77 Ala. 278.

The decree of the chancery court is. affirmed in the rulings, except as to the demurrers of C. C. Swope to the cross-bill, and is reversed in this respect, and a decree is here rendered sustaining same,' and the cause is remanded. Affirmed in part, reversed, rendered, and remanded.

All the Justices concur, except Mayfield, J., who dissents in part for the reasons set out by him.