Carpenter v. Carpenter

• Citation: 75 So. 472,200 Ala. 96
• Decision Date: 26 April 1917
• Docket Number: 1 Div. 987
• Parties: CARPENTER et al. v. CARPENTER.
• Court: Supreme Court of Alabama

75 So. 472

200 Ala. 96

CARPENTER et al. v. CARPENTER.

1 Div. 987

Supreme Court of Alabama

April 26, 1917

Rehearing Denied May 24, 1917

Appeal from Chancery Court, Washington County; Thomas H. Smith Chancellor.

Bill by J.C. Carpenter, administrator of the estate of W.J Carpenter, against Lucy Carpenter and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

Granade & Granade, of Chatom, for appellants.

Joe M Pelham, Jr., of Chatom, and Armbrecht, McMillan & Caffey, of Mobile, for appellee.

McCLELLAN J.

It appears from the face of the original bill, filed by J.C Carpenter, as administrator of the estate of W.J. Carpenter, deceased, that the complainant moved the probate court of Washington county to entertain jurisdiction of the final settlement of the estate, and that the probate court exercised the jurisdiction thereby invoked, and had a hearing upon the correctness of the account filed for final settlement by the administrator: his account being there appropriately contested by adult and infant heirs and distributees of the estate. The original bill seeks the removal of the estate into the court of equity upon the averred ground that the administrator had, prior to the filing of his account for final settlement in the probate court, expended funds belonging to the estate to the benefit and advantage of the widow and minor heirs or distributees, but that no separate account thereof, as against the widow and heirs or distributees, respectively, was kept, and avers that "it is now impossible to ascertain what proportion of such accounts so advanced and paid should be charged to the different heirs above mentioned, and to obtain vouchers therefor." In apparent accord with the prayer of the original bill, the chancellor made this order three days after he had affirmed, on inspection, the equity of the bill, and decreed "that the administration of the estate of William J. Carpenter, deceased," should be removed into the court of equity:

"Complainant having presented his bill of complaint, and moving that a temporary injunction be ordered, having read and considered the bill of complaint, I am of the opinion that the injunction as prayed for should be issued. You are therefore ordered and directed to issue an injunction upon applicant giving bond with surety in the sum of $43,019.67, being double the amount of the judgment sought to be enjoined, payable to the defendant, who was the plaintiff recovering said judgment against the complainant in this bill, and approved by you, and conditioned on the dissolution of such injunction to pay the amount of the judgment enjoined with interest, and also such damages and costs as may be decreed against him. July 20, 1915."

It is manifest that the jurisdiction of the probate court to entertain and enter upon the final settlement of the estate being moved thereunto by the complainant himself, was called into exercise and was in fact exercised by the probate court, with the result that a judgment or decree was rendered by the probate court against the complainant on such final accounting. In these circumstances, neither the act approved April 21, 1911 (Gen.Acts 1911, p. 574), nor the amendatory act approved September 23, 1915 (Gen.Acts 1915, p. 738), authorized the assumption by the chancery court of jurisdiction in the premises; these acts not at all contemplating the ouster of the jurisdiction of probate courts, where that court has actually entered upon...