Anderson v. Steiner

• Decision Date: 22 December 1927
• Docket Number: 3 Div. 826
• Citation: 217 Ala. 85,115 So. 4
• Parties: ANDERSON v. STEINER.
• Court: Alabama Supreme Court

115 So. 4

217 Ala. 85

ANDERSON v. STEINER.

3 Div. 826

Supreme Court of Alabama

December 22, 1927

Appeal from Circuit Court, Montgomery County; Walter B. Jones Judge.

Bill in equity by Maud E. Anderson, as administratrix of the estate of I.O. Anderson, deceased, against Robert E. Steiner, Jr. as guardian ad litem for Emily Anderson, and S.D. Cater, as administrator ad litem of the estate of I.O. Anderson deceased. From a decree sustaining a demurrer to the bill complainant appeals. Reversed, decree rendered overruling the demurrer, and cause remanded.

Rushton, Crenshaw & Rushton, of Montgomery, for appellant.

Steiner, Crum & Weil, of Montgomery, for appellee.

SAYRE J.

We have stated the bill as briefly as may be. It remains to be added that the averment is that the proposed disposition would result in a considerable saving to the estate and be of great benefit to all persons in interest, including creditors, who, in this case, were given notice of the pending proposal--with just what effect need not now be determined. Our attention has been confined to the questions presented for decision, viz.: In the first place, has the court of equity jurisdiction power, in the course of administration, to authorize a disposition of the assets of the estate of a decedent at private sale?

Prior to the Act of April 21, 1911, now in immediately relevant part embodied in section 6476 of the Code, it had been considered by this court, in Roy v. Roy, 159 Ala. 555, 48 So. 793, and Hardwick v. Hardwick, 164 Ala. 390, 51 So. 389, that, since the provisions of the Code (section 157 of the Code of 1896, amended in a respect now immaterial in section 2621 of the Code of 1907) furnished the only authority to any court to sell the lands of a decedent for distribution, the requirements of succeeding sections, regulating the procedure to that end in the case of an estate the administration which had been removed to the chancery court on a showing of special equity, must be followed in the chancery court. But that is not this case, and now the act referred to--the Act of April 21, 1911--has intervened, with what effect is the question in another form presented for consideration.

Patently, that act, brought over into the Code of 1923 as sections 6476, 6477, and 6478, was intended to expedite the settlement of administrations by authorizing their removal into the court of equity without necessity for special grounds of equitable interference, and to that end provided that the court of equity; that is, the circuit court sitting in equity, might, "in its discretion, proceed according to its own rules and practice, without regard to any of the statutory requirements provided for administration of estates in the probate court," and, in further effect, that nothing therein provided should be construed to deprive the equity court of any power or authority conferred upon it by law. At the common law of equity, so to speak, the court administering that jurisdiction, the chancery court, generally effected the sale of property, in case sale should be properly made by that court, by ordering the sale to be made by public auction; the court would, however, where it was for the interest of the parties, depart from its usual course, and allow the property to be disposed of by private contract. 2 Daniell, Ch.Pr. (6th Am.Ed.) star page 1293. This court has abundantly recognized the power of chancery to decree a private sale of the property of minors or other property held in trust where it is made to appear that such method of sale will conduce to the interest of the beneficial owners. McCreary v. Billing, 176 Ala. 314, 58 So. 311, Ann.Cas.1915A, 561; Martin v. Barnett, 205 Ala. 220, 87 So. 324; Tolley v. Hamilton, 206 Ala. 634, 91 So. 610. And in part, incidental part it may be conceded, the effect of the decree sought by the bill will be to change the form of the property now held in trust by the administratrix--held in trust for creditors, and after debts shall have been paid, for the infant defendant, the child of decedent, to the extent of her interest.

But, it must be noted, the main purpose and intent of the sale sought to be authorized is to rid the trust estate of debts hanging over it and of complications arising out of the fact that stockholders other than the estate of decedent, proposed purchasers in the arrangement for which the bill seeks the approval of the court, are entitled to have the debts due from decedent to their corporations paid and their interests segregated. In view of the principles of equitable jurisdiction heretofore stated, we find no insurmountable obstacles in the way of the proposed sale. The decree under review, as interpreted in the briefs, discloses the fact that the trial court was of opinion that chancery court rule 113 (Code, vol. 4, p. 943) stood in the way of the relief sought. The rule provides that the chancellor, in term time or in vacation, and the register, in vacation, may order the sale of any personal property in the hands of a receiver, executor, or administrator, over which the chancery court has taken jurisdiction. After prescribing the procedure, the rule concludes:

"Sales under such orders shall be governed by the laws applicable to sales of personal property under orders of the probate court, and reports thereof shall be made to the chancery court."

This rule, adopted February 18, 1885, was designed, as we conclude, to expedite the settlement of trust estates in the keeping of the chancery court at a time when that court, as a rule, sat only twice a year, its sittings in many of the chancery divisions being limited to three days. At the present time the circuit court, when exercising equity jurisdiction, is always open for the transaction of any business therein. Code, § 6636. We do not intend to say that the change in the terms of the court of itself worked an abrogation of the rule, but the chronology of the rule is stated because it sheds light upon its true intent and meaning. The rule did not affect the jurisdiction of the court--that, so far as concerns the establishment of new principles of equity otherwise than by the slow growth which responds to changing conditions affecting society at large was and is a matter of statute law--it merely provided a procedure in cases within the jurisdiction of the court. Another procedure is now established by section 6476 of the Code which at the same time preserves every power and authority conferred upon the court by law. And section 6663 of the Code, while conferring upon the Supreme Court the power to make rules, is careful to say that the court "shall not have authority to change, alter or modify any Act of the Legislature." So that, if it be conceded for the argument that the concluding clause of rule 113...