Bynum v. Brewer

• Decision Date: 20 October 1927
• Docket Number: 8 Div. 957
• Parties: BYNUM v. BREWER et al.
• Court: Alabama Supreme Court

114 So. 577

217 Ala. 52

BYNUM v. BREWER et al.

8 Div. 957

Supreme Court of Alabama

October 20, 1927

Rehearing Denied Dec. 8, 1927

Appeal from Circuit Court, Lawrence County; O. Kyle, Judge.

Petition by Joseph H. Brewer against Henry D. Bynum, as administrator of the estate of Mary H. Sherrod, deceased, for removal of administration of the estate from the probate court to the circuit court in equity. From the decrees, respondent appeals. Affirmed.

E.W Godbey, of Decatur, for appellant.

A.J Harris, of Decatur, for appellees.

SAYRE J.

On the petition of Joseph H. Brewer, describing himself as "a distributee of the estate of Mary H. Sherrod, deceased," the judge of the circuit court of Lawrence county, sitting as chancellor, made an order that:

"The said estate of Mary H. Sherrod, deceased, be and the same hereby is removed from the probate court of Lawrence county, Ala., to the circuit court of Lawrence county."

Evidently the chancellor conceived that he was acting under and in agreement with the authority of section 6478 of the Code (1923). The petition in response to which this order was made, as the recitals of the order showed, contained averments of the jurisdictional facts according to the requirements of the section and "ordered and decreed that the said estate of Mary H. Sherrod, deceased, be and the same hereby is removed from the probate court of Lawrence county, Ala., to the circuit court of Lawrence county, Ala.," and directed the register to transmit a copy of the order to the probate judge of the county and to Henry D. Bynum, as administrator of the estate of Mary H. Sherrod, deceased.

Appellant's motion to vacate the order "removing the administration of said estate" from the probate court was overruled and that ruling is now, for one thing, assigned as error.

Upon the fact that the order was for the removal of "the estate," instead of "the administration of the estate," in connection with the strictness required in summary proceedings, appellant seems to hang the argument that the administration was not removed, and hence that the circuit court had no authority to proceed. The statute provides for a removal of the administration of estates from the probate to the chancery court--the circuit court sitting in equity--upon the sworn petition of one of the parties therein named, alleging merely that "in the opinion of the petitioner such estate can be better administered in the circuit court *** than in the probate court," without more. We see no particular objection to the designation of the proceeding for removal as summary. It is ex parte. There must, of course, be a compliance with the terms of the statute in every essential particular, and it would have been more in keeping with that nicety of procedure, which had better be trimmed to meet every objection, if the court had ordered the removal of the "administration of the estate" instead of the "estate" merely, and yet we apprehend there is no possibility of misunderstanding the meaning of the order made, as appellant understood it when he came to move its vacation.

The more serious objection taken against the order is that it was made upon the petition of a person who was neither "heir, devisee, legatee, distributee, executor administrator, or administrator with the will annexed," as the statute requires. Appellee Joseph H. Brewer described himself a distributee, as we have already noted. In fact, he was a distributee of a distributee who had died since the death of intestate Mary H. Sherrod; but, in that relation, he was interested in the distribution of the estate of Mary H. Sherrod. He was entitled under the statute of descents and distribution to participate in the estate being administered. He was, in our judgment, a distributee of the estate in a very proper meaning of the term and within the purview of the statute. It was so held in effect in Crawford v. Carlisle, 206 Ala. 379, 89 So. 565. Even more clearly in point and to the same effect was the decision in Powell v. Labry, 207 Ala. 117, 92 So. 266. We are unable to see that, as appellant suggests, the fact that the two cases cited dealt with plenary suits inter partes, makes the slightest difference in respect of the question presented for decision. In both of them the statute was being construed and in each of them the presence of the complainant in the equity side of the circuit court was attributed to the authority and invitation of the statute. Nor does this interpretation of the statute enlarge its meaning beyond the expressed intention of the Legislature upon a fair construction of its language or extend it to include creditors or persons standing in a like adversary relation to the estate, as appellant suggests. Such persons must approach the estate for the purpose of having satisfaction of their claims out of it by or through the personal representative. The statute was intended to include within its remedial provisions all persons interested in the administration of estates in virtue of the statute of descents and distribution or the will of the deceased owner. Appellant quotes from a number of cases which afford no help in the present emergency--that is--in the interpretation of the statute, for the reason that they were decided before its enactment in 1915, now section 6478 of the Code. They do show that to the settlement of such controversies as the one here presented the presence of the personal representative is necessary as it was before the statute; but this does not mean that in a case circumstanced as here the personal representative alone is authorized to petition for a removal of the administration. Our opinion...