Cook v. Castleberry

• Citation: 233 Ala. 650,173 So. 1
• Decision Date: 18 February 1937
• Docket Number: 7 Div. 430
• Parties: COOK v. CASTLEBERRY.
• Court: Supreme Court of Alabama

173 So. 1

233 Ala. 650

COOK v. CASTLEBERRY.

7 Div. 430

Supreme Court of Alabama

February 18, 1937

Rehearing Denied March 18, 1937

Appeal from Circuit Court, Calhoun County; Lamar Field, Judge.

Bill in equity by Othella C. Cook against Lena B. Castleberry, as administratrix of the estate of E.T. Castleberry. From a decree sustaining a demurrer to the bill, complainant appeals.

Reversed rendered, and remanded.

Claim will not be enforced, though it is not stale under 20-year doctrine, if there exists laches of complainant, for laches is not fixed by a hard and fast limit of time, but is a principle of good conscience dependent upon the facts of each case.

Longshore & Williams and Rutherford Lapsley, all of Anniston, for appellant.

Knox Dixon, Dixon & Allen, of Talladega, for appellee.

FOSTER Justice.

This is a suit in equity by an heir and distributee of the estate of John H. Castleberry, deceased, and seeks to compel the administrator to make a settlement and distribution of said estate according to the requirements of section 5925, Code. The deceased administrator of the estate was E.T Castleberry, and Lena Castleberry is alleged to be administratrix of his estate. E.T. Castleberry became administrator of John H. Castleberry's estate on March 14, 1900, and died April 17, 1931, and Lena Castleberry was appointed his administratrix. The administration of the John H. Castleberry estate has been moved into equity where this bill is filed. It alleges that all the debts have been paid. There were only three heirs, a sister (complainant) and two brothers, who were E.T. Castleberry and W.B. Castleberry. The latter died in 1935, and complainant has been appointed administratrix of his estate.

The bill alleges that after the death of John H. Castleberry their mother, E.E. Castleberry, died, and E.T. Castleberry, by consent of all parties, took over the administration of her estate without an appointment. That he commingled the funds of both estates in a bank account in his name as agent. That from time to time he rendered statements to his coheirs of the two estates, and made payments to them up to the year 1930 from the combined estates. It also alleges certain acts of misfeasance unknown to her until within a year before filing suit; that he made no inventory or settlement in court; but that on such settlement, if one is made, he would be liable to her as an heir and distributee. There is no administrator de bonis non of John H. Castleberry alleged to exist, and no administrator ad litem prayed for or appointed. Ordinarily an administrator de bonis non or ad litem would be necessary. Waller v. Ray, 48 Ala. 468; section 6057, Code; Blackwell's Adm'r v. Blackwell's Distributees, 33 Ala. 57, 70 Am.Dec. 556.

But when a settlement is sought in equity, and all the debts are paid, and all the heirs of decedent and distributees of his estate are represented before the court, an administrator de bonis non or ad litem is not necessary. Ex parte Baker, 118 Ala. 185, 23 So. 996; Winsett v. Winsett, 203 Ala. 373(15), 83 So. 117; Teal v. Chancellor, 117 Ala. 612, 23 So. 651.

The bill alleges that there are minor children and heirs at law of E.T. Castleberry, whose names are not given and who are not made parties, but who are heirs and distributees of John H. Castleberry, through their deceased father, E.T. Castleberry, who was an heir and distributee of John H. Castleberry. But the bill makes no mention of any real estate owned by John H. Castleberry, and seems to proceed only in respect to personal property. The personal property of E.T. Castleberry when he died, including that which he inherited from John H. Castleberry, descended to his personal representative, who is a party.

The bill also alleges that W.B. Castleberry was a brother of John H. Castleberry, and was therefore an heir and distributee of his estate, and that W.B. Castleberry was dead at the time this suit was begun. It makes no allegation as to his distributees. An administrator of his estate is a necessary party to this suit. Gardner v. Kelso, 80 Ala. 497, 501, 2 So. 680. The bill alleges that complainant has been appointed administrator of his estate. While she does not sue as such nor otherwise make herself a party in such representative capacity, she is before the court, and her interest personally is not antagonistic to her interest as such administratrix. So that we take it that the necessary parties are before the court. Watson v. Oates, 58 Ala. 647.

Appellee argues in support of the decree that the claim sought to be enforced should have been presented to the estate of E.T. Castleberry, and not alleging that it was presented, the bill is subject to demurrer. McDowell v. Brantley, 80 Ala. 173. That contention would be well founded if the bill showed just when the appointment was made, and that it prayed for a personal decree against the administrator of the estate of E.T. Castleberry.

In the case of Rhodes v. Hannah's Adm'r, 66 Ala. 215, the administrator of a deceased guardian was cited to make settlement of the guardianship. On the settlement it appeared that the deceased guardian had in his lifetime received an item of money of which he had made no account. This was an amount held to be due by the guardian as a debt, in the absence of a showing that he retained the specific fund, and that because he owed such debt to the ward, it should be presented as such against the estate of the deceased guardian. And in Taylor v. Robinson, 69 Ala. 269, it was held that a claim of heirs that an administrator has committed a devastavit, upon the death of such administrator, should be presented to his administrator under the statute of nonclaim.

But we do not understand that such principle is sufficient to support a demurrer to the bill in this case, for it does not pray for a personal decree against the estate of E.T Castleberry. The prayer of the bill is for a settlement of the estate of John H. Castleberry, and distribution to the heirs and distributees. On such settlement, if it...