White v. Hill

58 So. 444, 176 Ala. 480, 1912 Ala. LEXIS 97

• Court: Supreme Court of Alabama
• Decided: April 18, 1912
• Status: Published

Opinion

McCLELLAN, J.

William White died, intestate, on May 24, 1909. On June 16, 1909, Fannie Hill filed her petition in the probate court of Mobile county, alleging that intestate was unmarried and without issue, and that she, as his sister, was his sole next of kin and heir at law, and praying her appointment as administratrix of his estate. On June 22, 1909, letters of administration upon the estate of intestate were issued to Fannie Hill. On June 26, 1909, Emma Green and Callie White filed their pettiion, praying the revocation of the letters thus issued and the issuance of letters to them or to either of them. In their petition they alleged that the letters to Fannie Hill were improvidently granted upon false statements in this: that intestate Avas not married; that he left no heirs at law; that Fannie Hill Avas the sole heir at law. It was further averred that they Avere children and heirs at law of the intestate, and so, in consequent of a valid common-laAv marriage effected between decedent and the mother of the petitioners. On June 28, 1909, Henrietta White filed in the probate court a paper as MIoavs:

"in be estate oe william white.

"To the Honorable Price Williams, Jr., Judge of Probate:

“Henrietta B. White, hereby represents to your Hon- or that she is the common law wife of William White, deceased, having been married to him by agreement at Portland, Dallas County, Alabama, about twenty-four or twenty-five years ago.

“Of this marriage two children were born, Emma and Callie.

“William White died May 24th, 1909, leaving some property, the amount and character of which I am not fully aware.

“I hereby waive my right to administer on his estate, and pray this Honorable Court to take such steps and make such decrees as ought to be made in my behalf.

her

“Henrietta X B. White.”

mark

“Witness: Callie White.

“Piled June 28, 1909.”

On July 27, 1909, the probate court entered the following order or decree: “State of Alabama, Mobile County. Probate Court of said County. July 27, 1909. Estate of William White, Deceased. — Emma Green et al. v. Fannie Hill. This day this cause came on for hearing upon the application of Emma Green and Callie White to cancel the letters of administration heretofore granted in favor of Fannie Hill upon the estate of Wil liam White, deceased, issues being joined between the parties, and, after hearing the testimony and the argument of the counsel, the court is of the opinion, and concludes that Emma Green and Callie White are not the lawful heirs and legitimate children of William White, deceased, and are not the heirs at law and next of kin of said decedent, and it is therefore ordered, adjudged, and decreed by the court that the said petition be denied and overruled. It is further ordered and decreed that the appointment of Fannie Hill, as administratrix of William White, deceased, was not improvidently made, and that she is now the duly appointed administratrix of said estate. It is further ordered and decreed that the petitioners pay the costs of this proceeding for which let execution issue.”

From this decree an appeal was prosecuted to this court “in the name of Oallie White, hy her guardian ad litem, alone.” The appeal was dismissed for the want of proper parties appellant, it being ruled that the decree was joint, against Callie White and Emma Green, “rendered upon a petition filed by them,” and Callie White alone prosecuted it. — Walsh v. Hill, 169 Ala. 410, 53 South. 746. On November 22, 1910, Henrietta White filed this bill against the administratrix, Hill, alleging, among other things, that she was the surviving widow of William White, deceased, and praying the removal of the estate of the decedent into, and its final settlement in, the chancery court of Mobile county. To this bill the respondent (the administratrix) interposed pleas, wherein it is set up, in substance, that the before-quoted decree of the probate court bindingly determined upon Henrietta White the fact that she was not the wife, or surviving widow, of William White. By her answer the administratrix denied that Henrietta White was the widow of William White, deceased, and also denied that she was a distributee of his estate. It is too evident to admit of doubt that the construction taken in Walsh v. Hill of the decree of July 27, 1909, was and is correct. The question there raised and decided involved the matter of necessary parties to an appeal, and not the broader inquiry, now pressed, whether Henrietta White is estopped by that decree. It is, of course, readily conceivable that one may be bound by decree on collateral assailment, and yet not a necessary party to an appeal therefrom.

Those concluded by a judgment or decree are thus defined in Powell v. Robinson & Ledyard, 76 Ala. 423, 425: “In order that a judgment may operate a bar, or an estoppel conclusive on the party sought to be bound, he must have been a -party to the suit, or in privity with a party, or have possessed the power of making himself virtually a party in the larger legal sense, having a right to control the proceeding, to make defense, to adduce and cross-examine witnesses, and to appeal from the decision, if any appeal lies. Where there is privity of relation, as bailor and bailee, it is sufficient if the party voluntarily appears and makes defense, or has an opportunity to present and litigate his claim. — McLelland v. Ridgeway, 12 Ala. 482; * * * Tarleton v. Johnson, 25 Ala. 300 [60 Am. Dec. 515].”

There is no such privity between coheirs or codistributees as will operate to give a judgment or decree against one heir or distributee an effect to estop those heirs or distributees not parties to the proceeding leading to the judgment or decree whereby those not parties to that proceeding are sought to be bound. — 2 Black on Judg. § 565; Blackburn v. Crawford, 3 Wall. 175, 190, 18 L. Ed. 186; Kearney v. Denn, 15 Wall. 51, 57, 21 L. Ed. 41. Such persons (coheirs or distributees) do not claim through or under one another, thus omitting an essential factor in order to establish the binding quality of privity.- — 23 Cyc. pp. 1277, 1278.

The grant of letters testamentary and of administration are in more important aspects proceedings in rem; and in others are proceedings in personam. — Nelson v. Boynton, 54 Ala. 368, 376. In the particular that the grant of letters creates a repository of the abeyed title of the deceased owner of personal property, it operates upon the status, the thing, and is, hence, a proceeding in rem. — Nelson v. Boynton, supra. But in the aspect that the grant of letters of administration determines the right thereto, including priority, or inclusion within one of the classes defined in Code, § 2520, the proceeding is in personam. In Blackburn v. Crawford, supra, and Kearney v. Denn, supra, it was expressly ruled that a fully jurisdictioned determination that a brother who resisted as defendant the grant of letters was not next of kin to the decedent did not bind, in any degree, his sister who was not a party to that proceeding. Indeed, it Avas there held that the record of the proceedings to which the brother Avas a party was not admissible in the subsequent proceedings. If the initial proceeding there considered had been in rem, or even in that nature, the conclusion stated could not have' prevailed. In Martin v. King, 72 Ala. 354, 360, definition of a proceeding in rem is given. The application thereof to the matter in hand accords with the ruling of the Supreme Court to Avhich reference has been made.

It has come to be accepted laAV that where the right to letters of administration of an estate depends upon relationship to the intestate (Code, § 2520), and that question is investigated and determined by a court generally jurisdictioned in the premises, and the letters are granted accordingly, that adjudication is conclusive, as to relationship to the decedent and as to the right to distribution, upon parties to that proceeding, and the judgment therein cannot be collaterally assailed in another forum. — Caujolle v. Ferrie, 13 Wall. 465, 20 L. Ed. 507; Bouchier v. Taylor, 7 Brown’s Parliamentary Cases, 414-432; Barrs v. Jackson, 1 Phillips (Eng. Ch. Rep.) 581; 7 Rose’s Notes, pp. 740, 741. G-reenleaf, at section 550, makes this statement of the doctrine: * * If the grant of administration turned upon the question as to which of the parties was next of kin, the sentence or decree upon that question is conclusive everywhere in a suit between the same parties for distribution.” (Italics supplied.)

No reason appears for a distinction where the issue arises upon the application to grant letters and .where the application is to revoke a grant already made, and which is assailed, in the granting court, as improperly granted. — Martin v. King, supra. The rule of estoppel, if arising, must be the same in each instance. The proceeding resulting in the decree of July 27, 1909, not being in rem, and there being no relationship establishing privity between Emma Green and Callie White, on the one hand, and Henrietta White, on the other, and no relation 'of bailment existing between them, the single question in this regard is, Was Henrietta White a party to that proceeding, to revoke the letters granted to Fannie Hill, within the other phase of the doctrine of Powell v. Robinson, supra?

That she was not a party to the record, and was not treated as such, convincingly appears from the silence as to her of the decree of July 27, 1909, and from the fact that the paper waiving her right (if so) to letters of administration filed by her was so filed two days after Emma Green and Callie White had invoked the court to revoke the letters to Fannie Hill. Additionally the court’s construction of the decree excluded Henrietta White as a record party to the proceeding.— Walsh v. Hill, supra.

"Evidence de hors the record of the proceedings wherein revocation of the letters to Hill was sought to show the connection of Henrietta White with that proceeding was admissible. — Tarleton v. Johnson, 25 Ala. 300, 60 Am. Dec. 515. Consulting such evidence as appears in this record, it does not appear that she.was a party in the larger sense to which reference is made in Powell v. Robinson, supra. She was a witness in the case and later engaged the same counsel who represented her children. That she had or exercised the privileges of control defined in Powell v. Robinson is by no means shown.

Under the evidence before us, a common-law- marriage was accomplished by William and Henrietta before his removal to Mobile. The requisites thereof are thus stated in 26 Cyc. at pages 836, 837: “To constitute a marriage good and valid at common law — that is, in the absence of a statute otherwise specifically providing — it is not necessary that it should be solemnized in any particular form or with any particular rite or ceremony. All that is required is that there should be an actual and mutual agreement to enter into a matrimonial relation, permanent and exclusive of all others, between parties capable in law of making such a contract, consummated by their cohabitation as man and wife or their mutual assumption openly of marital duties and obligations.” See, also, Beggs v. State, 55 Ala. 108; Ashley v. State, 109 Ala. 48, 19 South. 917; Hawkins v. Hawkins, 142 Ala. 571, 38 South. 640, 110 Am. St. Rep. 53.

If, at that time, William was a minor, that fact did not render the creation of the common-law relation of marriage impossible or void. — Beggs' Case, supra; 26 Cyc. pp. 842, 843; Code, § 4879. The evidence indicates with satisfactory clearness that he was over 17 years of age at the time.

The decree appealed from is reversed; and the cause is remanded for further proceedings in accordance with this opinion.

Reversed and remanded.

All the Justices concur.