Ashurst v. Ashurst
| Decision Date | 09 January 1912 |
| Citation | 175 Ala. 667,57 So. 442 |
| Parties | ASHURST ET AL. v. ASHURST. |
| Court | Alabama Supreme Court |
Appeal from Chancery Court, Tallapoosa County; W. W. Whiteside Chancellor.
Bill by Gillie D. Ashurst, as executrix, against her coexecutor Harry G. Ashurst, and others, to remove the settlement and administration of the estate to the chancery court. From a decree overruling demurrers both to the bill and cross-bill respondents appeal. Affirmed.
James W. Strother, for appellants.
Thetford & Mackenzie, for appellee.
The bill in this case is filed by an executrix to remove the settlement and administration of the estate of her testator from the probate to the chancery court. The special ground alleged for the removal is to obtain the aid and assistance of the chancery court in the construction of the will, and in the administration of the trusts necessary to a proper settlement of the estate. The respondents, some of whom are coexecutors and devisees, demurred to the bill, which demurrer was overruled. The bill was subsequently amended, however, and the demurrer was interposed to the amended bill. An answer was also filed, which was made a cross-bill, and to this answer and cross-bill demurrers were interposed.
The cause was submitted to the chancellor on demurrers only to the amended bill and to the cross-bill; and from the interlocutory decree overruling the demurrers the respondents prosecute this appeal. Of course, respondents cannot and do not complain of the overruling of the demurrer to thecross-bill.
It is earnestly insisted on this appeal by both appellants and appellee that we should so far construe the will in question as to determine whether certain clauses therein are valid or void. We cannot accede to the correctness of this proposition. Our jurisdiction in this instance is appellate only, for the purpose of reviewing the correctness of the interlocutory decree of the chancellor from which the appeal is taken. The chancellor has not yet passed upon the merits of the case; nor can we act on this appeal further than to affirm or overrule the decree rendered by him. If we affirm the decree of the chancellor overruling the demurrer, then the case will proceed on its merits and the chancellor will have to construe the will; and on an appeal from a decree construing the will, or settling the rights of the parties thereunder, we could review such decree, and, if necessary, construe the will. But we cannot construe the will on this appeal, and any attempt to do so would not be binding on us nor on the parties. The demurrers to the amended bill, at most, merely tested the sufficiency of the averments of the bill as amended. The chancellor decreed only that the demurrer was not well taken, and that it was overruled. We fully concur with the chancellor, and must therefore affirm his decree.
The chancellor on that hearing was not authorized nor called upon to construe the will, but only to construe the bill. The main, if not the sole, equity of the bill, was to obtain a construction of the will by the chancellor. This he cannot do until he acquires jurisdiction of the subject-matter; and he can acquire jurisdiction only by the filing of a bill sufficient to confer it. The only decree so far rendered was one which, in effect, held that the bill filed was sufficient to confer jurisdiction to remove the settlement and proceedings from the probate to the chancery court. Until the proceedings are so removed, or, at least, are by a proper decree or order authorized to be removed, the chancellor has no authority to construe the will nor to authorize any proceedings in the administration of the estate. The mere filing of the bill does not remove the proceedings from the probate to the chancery court. The bill, if sufficient, merely authorizes the chancellor to order or decree the removal; and, until he does so order or decree, the matter is still in the probate court, and not in the chancery court. Thus far, in this case, there has been no order or decree of removal of the administration from the probate to the chancery court, and, until such removal order or decree is had, the chancellor cannot construe the will except in so far as it may be necessary to pass upon the equity or the sufficiency of the bill. To this extent, and for this purpose only, will we construe the will on this appeal.
In nearly all equity cases a preliminary inquiry is first to be made: Has the court jurisdiction? Is the bill or petition sufficient to authorize equitable interposition and relief? The interposition of chancery is extraordinary, and can be obtained only when the ordinary tribunals are inadequate to full and complete relief.
In the case before us the complaint sets out the will or parts thereof, and alleges that parts of the will are...
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