Awbrey v. Estes

• Decision Date: 14 April 1927
• Docket Number: 5 Div. 969
• Parties: AWBREY v. ESTES.
• Court: Alabama Supreme Court

112 So. 529

216 Ala. 66

AWBREY v. ESTES.

5 Div. 969

Supreme Court of Alabama

April 14, 1927

Appeal from Circuit Court, Randolph County; S.L. Brewer, Judge.

Petition of Ralph Estes, by his next friend, W.L. Wilson, to the probate court of Randolph County seeking to intervene in the proceedings of the estate of Hassie Glanton, deceased, with motion by B.D. Awbrey, as administrator of said estate to strike the petition. The petition being on motion stricken petitioner appealed to the circuit court, and, from a judgment of the circuit court overruling a motion to dismiss the appeal and reversing the decree of the probate court, the administrator appeals. Transferred from Court of Appeals under Code 1923, § 7326. Affirmed.

G.B Walker, of Roanoke, and Denson & Denson, of Opelika, for appellant.

W.L. Wilson, of Roanoke, for appellee.

THOMAS J.

The proceeding was in the probate court by intervention of Ralph Estes, a minor, to compel the administrator to recognize him as a distributee of the Glanton estate. The appeal was to the circuit court, where the motions of the administrator were overruled, and hence the appeal to this court under sections 6101, 6114, 6115, Code of 1923.

The motion to strike admits the facts averred in the petition in so far as material to the motion. The petition was heard and stricken on December 7, 1925, and appeal taken by bond, that is marked approved by Judge of Probate January 28, 1925. This was a clerical misprision, as the approval in fact was on January 28, 1926, and was within six months of the decision or decree, the effect of which was as to "the payment of a *** distributive share" (section 6115, subd. 4, Code of 1923), and was within the right provided by sections 6114, 6115 of the Code. The record otherwise shows the true date of filing the appeal bond to have been January 28, 1926. The appeal was seasonably taken to the circuit court to determine the minor's distributive share in the estate, and was so considered in the circuit court. The orders were properly entered (1) overruling the motion to dismiss the appeal, and (2) that remanding the cause to the probate court for trial of the fact determinative of the minor's right vel non of a distributive share or interest in said estate. This action of the circuit court was in line with the general policy of courts to treat an intervention, in nature an equitable remedy, necessary to enforce the justice of the case determined according to law as between those entitled. Marsh v. Mut. Life Ins. Co., 200 Ala. 438, 76 So. 370; School Dist. v. Weston, 31 Mich. 85; 4 Pom.Eq.Jur. § 1323.

The right of intervention is a common-law remedy, and our statutes cumulative. The general subject is treated in Rocca v. Thompson, 223 U.S. 317, 32 S.Ct. 207, 56 L.Ed. 453, 457. The right of a consul to intervene in the administration of a deceased foreign resident was recognized in Carpigiani v. Hall, 172 Ala. 287, 55 So. 248, Ann.Cas.1913D, 651, and rested on the general laws of nations, as well as on treaty stipulations. The jurisdiction and power of courts on due application to ascertain the real parties at interest in pending litigations has been the subject of frequent discussion, Ex parte Printup, 87 Ala. 148, 6 So. 418; Douglass v. Blake, 189 Ala. 24, 66 So. 617; and the necessity to have the whole title represented and bound by the decree, Hodge v. Joy, 207 Ala. 198, 92 So. 171; and the necessity of due process in the right of a party at interest on application to be made a party and appeal if desired was the subject of Lyons v. Hamner, 84 Ala. 197, 4 So. 26, 5 Am.St.Rep. 363; Cantelou v. Whitley, 85 Ala. 247, 4 So. 610, And the adding of proper parties on application, to proceedings in the administration of estates in the probate court was the subject of Binford v. Binford, 22 Ala. 682; Boykin v. Kernochan, 24 Ala. 697; Watson v. May, 8 Ala. 177.

In Townsend v. Steel, 85 Ala. 580, 582, 583, 5 So. 351, 352, it is declared:

"The record shows that the appellee appeared in the court below, claiming to be the sole heir at law of the decedent; and on her motion the petition of the administrator was dismissed. The bill of exceptions, however, which purports to set out all the evidence, fails to show that she was an heir at all, or had any interest in the estate of Dorse. If she had appeared, and satisfied the court prima facie that she was an heir, the proper practice would be to permit her to be made a party defendant, with permission to controvert the application, including the statement as to who were the real heirs of the decedent. We have often held, in such cases, that an heir, whose name is omitted from the application, may appear, even after judgment, and be made a party to the record, on petition and proof of interest, in order to sue out an appeal to this court, this being the only mode in which the interest of such heir can be properly protected, after the order of sale is made. Lyons v. Hamner, 84 Ala. 201 [4 So. 26, 5 Am.St.Rep. 363] supra, and cases cited on page 202 ."

This right is necessary to that of due process under the Constitutions. Lyons v. Hamner, supra.

The personal representative is a party entitled to litigate the right of any one who claims an interest in final distribution. Watson v. May, 8 Ala. 177; Ward, Adm'r, v. Oates, Adm'r, 42 Ala. 225. The duty in the first instance was upon the personal representative to correctly bring in all the heirs, next of kind, and distributees. He did this with the omission of the nonresident petitioner, and the other distributees were in court and are not required to have other notice than that given to the personal representative. They would be accorded ample opportunity to controvert the relationship of the petitioner before final distribution. The foregoing is in accord with the requirements of due process as to all necessary parties in interest.

It is insisted by the appellant that the petition was that of application for removal of the administrator and the grant of letters to nonresident petitioner under sections 5742-5744 of the Code. Such is not its legal import. It was merely that of an...