Coleman v. Foster

• Decision Date: 23 June 1896
• Citation: 112 Ala. 506,20 So. 509
• Parties: COLEMAN v. FOSTER.
• Court: Alabama Supreme Court

20 So. 509

112 Ala. 506

COLEMAN v. FOSTER.

Supreme Court of Alabama

June 23, 1896

Appeal from chancery court, Hall county; W. H. Tayloe, Chancellor.

Bill filed by Leah Foster, as guardian, against B. W. Coleman, as administrator. Decree for complainant, and defendant appeals. Affirmed.

Fannie Julia Scott departed this life under the age of 18 years without issue. Her father and mother had died prior to her death, and she left surviving her John Edwin King Scott, a half-brother, a son of her father by his second wife. She left an estate consisting of real and personal property. B W. Coleman, the appellant, was her guardian, and after her death was appointed administrator of her estate. Leah Foster the appellee, as guardian of J. E. K. Scott, filed the bill in this case against B. W. Coleman for a settlement of his guardianship and of his administration. B. W. Coleman filed a cross bill in which he set up that he was heir at law of the decedent, Fannie J. Scott, he (Coleman) being the son of her mother's sister. The cross bill was dismissed. Upon the submission of the cause on the pleadings and proof, the chancellor granted the relief prayed for in the original bill. From this decree the defendant appeals, and assigns the same as error.

Seay &amp De Graffenried, for appellant.

Chas E. Waller and G. B. Johnston, for appellee.

McCLELLAN J.

Fannie Julia Scott inherited the property involved in this cause from her mother, and died without issue and without brother or sister of the full blood, but leaving a half-brother, the son of her father by a second wife. Her father's death preceded hers. B. W. Coleman is the son of her mother's sister. The only question presented for review by the brief of appellant's counsel is whether defendant's half-brother, John Scott, or her cousin, B. W. Coleman inherits this estate; the former being related to the intestate in the second degree, but not through her mother, through whom the estate came to her, and the latter in the fourth degree, through her mother. Our statutory provision bearing on this question is as follows: "There is no distinction made between the whole and the half blood in the same degree, unless the inheritance came to the intestate by descent, devise or gift, from or of some one of his ancestors; in which case, all those who are not of the blood of such ancestor, are excluded from the inheritance as against those of the same degree." Code, §...