Clements v. Clements

• Decision Date: 15 November 1917
• Docket Number: 4 Div. 720
• Citation: 76 So. 855,200 Ala. 529
• Parties: CLEMENTS et al. v. CLEMENTS et al.
• Court: Alabama Supreme Court

76 So. 855

200 Ala. 529

CLEMENTS et al. v. CLEMENTS et al.

4 Div. 720

Supreme Court of Alabama

November 15, 1917

Appeal from Chancery Court, Geneva County; O.S. Lewis, Chancellor.

Bill by Mary S. Clements and others against Mrs. Nettie Clements and others. From a decree sustaining a demurrer to the bill complainants appeal. Affirmed.

Curry &amp Walker, of Clanton, for appellants.

H.L Martin, of Ozark, and C.D. Carmichael, of Geneva, for appellees.

ANDERSON C.J.

As we understand the bill in question, it presents a contest between the alleged legitimate wife and children of Jesse J Clements, alias J.N. Clements, deceased, and the bigamous wife and illegitimate children of said Clements, and seeks to subject certain money in the hands of the register as part of the proceeds of the sale of lands belonging to the estate of said decedent and to intercept said fund before it falls into the hands of an innocent party. The bill does not seek to set aside the decree of sale, or to vacate said sale, but only seeks to subject so much of the proceeds of same as is now under the control of the chancery court, thus, in effect, ratifying the sale and the title acquired thereunder by the purchaser, Faulk. Nor can these respondents complain that the complainants prefer subjecting the proceeds instead of trying to recover the land, or that they ask for only so much of the proceeds as has not heretofore been paid out. Neither can they complain of a misjoinder of parties complainant because the alleged legal widow of Clements is made a party complainant, as she is at least a proper, if not a necessary, party, and the chancery court can decree a proper distribution between her and the other complainants in case of a recovery, as she has a marital right in the fund sought, whether it be treated and distributed under the law governing the descent and distribution of real estate or personalty. Therefore, if the bill did not disclose other material facts hereinafter discussed, it would not be subject to the respondent's demurrer. Evans v. Evans, 76 So. 95, and many cases there cited.

The bill however has attached thereto certain exhibits and which must be treated as a part of said bill upon demurrer. Hogan v. Scott, 186 Ala. 310, 65 So. 209. These exhibits disclose the fact that the estate of said Clements was duly administered in the probate court of Geneva county that the estate was finally settled, and that the land sold by the chancery court for distribution between the joint owners, and the proceeds of which are now sought, was set apart by an order or decree of said court as dower and homestead to the respondent widow and her minor children. This was a judicial ascertainment by said court that the respondents were the legal widow and children of said Clements and entitled...