Adams v. Walsh

• Decision Date: 17 December 1914
• Docket Number: 557
• Parties: ADAMS v. WALSH et al.
• Court: Alabama Supreme Court

67 So. 432

190 Ala. 516

ADAMS v. WALSH et al.

No. 557

Supreme Court of Alabama

December 17, 1914

Appeal from Chancery Court, Russell County; W.R. Chapman Chancellor.

Bill by Ophelia J. Adams, as administratrix of the estate of Warren D. Halliday, deceased, against Louisa J. Walsh and others. Decree sustaining demurrer to bill, and complainant appeals. Affirmed.

F.E Blackburn, of Birmingham, for appellant.

A.E Barnett, of Opelika, and Evans, Ferrell & Glenn, of Seale, for appellees.

GARDNER J.

The bill in this case was filed by appellant, and seeks to vacate the decree of the probate court of Russell county, rendered December 19, 1911, against appellant, as administratrix, on final settlement of her administration of the estate of Warren D. Halliday, deceased, which said decree was in the sum of $2,000 and in favor of the appellees, as the heirs and distributees of said Halliday, deceased. From the decree of the chancellor sustaining demurrer to the bill, this appeal is prosecuted.

It is alleged in the bill that the judge of probate proceeded on November 16, 1911, to state and file an account of the complainant, as administratrix of the said estate, and to make an order on said date setting same down for hearing on December 19, 1911, and proceeded to a hearing upon the account so stated by him, and, upon said hearing on December 19, 1911, entered the decree against her as administratrix in the sum of $2,000, and that at this time there was on file a statement of her account filed by her on August 17, 1911, pursuant to an order of said court.

It is insisted by counsel for appellant that under these averments the judge of probate was without authority in stating an account against complainant and in rendering the decree of December 19, 1911, and that the same is void and should be vacated, and an accounting had in the chancery court.

It is urged by counsel that the bill "in fact is bottomed upon the proposition that the probate court had no such power or authority."

Speaking to this insistence, the learned chancellor, in his able opinion which accompanies the decree, has this to say:

"The complainant in this case first insists that the decree in the probate court is void because it was entered without setting the complainant's account down for hearing. It is alleged that, something more than a year after the grant of letters of administration, two of the respondents filed a petition in the probate court, as they had a right to do, to force complainant to make a settlement. Some time after the filing of this petition, complainant filed her accounts and vouchers; but it does not appear that the account was filed within the time required by the order of the probate court. The allegations of the bill are silent as to this. It is further alleged that thereafter the judge of the probate court stated an account of complainant's administration of said estate; that said account as stated by the court was filed November 16, 1911, and was set down for hearing on December 19, 1911; and that on said date judgment was entered against the complainant. It is not averred that complainant had no notice of the hearing on December 19, 1911. In the absence of such an allegation, it will be assumed that complainant had notice of the hearing, and was present in court, or, if not present, had the right to be present and protect herself against such orders and decrees as might be made by the court. There are no facts alleged in the bill from which it could be concluded that the errors and mistakes complained of could not have been corrected, and indeed would have been corrected by the probate court if complainant had appeared and looked after her interest as she was in duty bound to do. *** Complainant fails to attach as exhibits to the bill any of the proceedings of the probate court. The account which she claims to have filed in the probate court on August 17, 1911, is not attached as an exhibit. The statement made up by the court is not attached as an exhibit, nor the decree rendered by the court. It is impossible to know what these statements and decrees contained."

It then appears that this was not a voluntary settlement governed by section 2667 et seq. (Code, 1907), but one that came within article 18 of said chapter of the Code, which provides for compelling a settlement by an administrator.

As shown above, the bill fails to allege that the complainant filed her accounts and vouchers by the day named in the citation which was issued out of the probate court, but merely that it was filed August 17, 1911. If not filed by the day named, the court should proceed to state the...