O'Daniel v. Gaynor

• Decision Date: 15 January 1907
• Citation: 150 Ala. 205,43 So. 205
• Parties: O'DANIEL v. GAYNOR ET AL.
• Court: Alabama Supreme Court

43 So. 205

150 Ala. 205

O'DANIEL v. GAYNOR ET AL.

Supreme Court of Alabama

January 15, 1907

Rehearing Denied March 2, 1907.

Appeal from Chancery Court, Mobile County; Thos. H. Smith Chancellor.

Bill by Melissa D. O'Daniel against W. C. Gaynor, as administrator, and others. From an order sustaining demurrers to the bill, complainant appeals. Affirmed.

The allegations of the bill are that during his life William D O'Daniel owned and occupied as a homestead the lands described in the bill, of less area than 160 acres and of less value than $2,000, and that he died in possession of these lands; that upon his death Melissa D. O'Daniel, as his widow, took possession of said lands, and has since occupied them as her homestead, claiming to be the absolute owner of the same; that at the death of her husband he owned no other real estate, and that his personal property was of less value than $1,000; that at the time of his death O'Daniel was indebted to one Jones in the sum of $400 and that his estate was utterly insolvent, and that it was the duty of his administrator, Gaynor, to so report the same and have a decree of insolvency declared; that said Gaynor was administrator of the estate and the confidential adviser and counsel for orator, and that orator was wholly ignorant of the law in regard to the matter of the homestead, and did not know that it was necessary for said decree of insolvency to be made to fully protect her in the feesimple title to the homestead; that said Gaynor did not, although he was consulted by orator as her counsel as to the proper method of protecting her interest in the homestead, inform your orator of the necessity of having the estate declared msolvent, but has kept the said estate opened and unsettled, and has from time to time represented to her that it was necessary to the protection of her homestead to do so, and has represented and led her to believe that everything that was necessary for her protection in her homestead rights had been done and was being done, and has thus led orator to pay him large sums of money for protecting her interests in said homestead; that she reposed entire confidence in said administrator, who was her confidential lawyer and adviser, and was kept in ignorance of her rights by his advice, and who notwithstanding his duty to take such action, neglected and failed to take the proper action and proceedings to have said estate declared insolvent until after the indebtedness against the said estate became barred by the statute of limitations, although the said claim of the said Jones had been duly filed with the said administrator as a claim against the estate, and although he was fully advised of the matters herein alleged. It is further alleged that the heirs are publicly asserting that orator has only a life estate in such homestead, and are claiming to own the fee to the remainder in said estate. It is further alleged that orator has petitioned the probate court to set apart the homestead to her, and that said petition is now pending in the probate court; but orator is advised, and so states, that the probate court has no jurisdiction to adjudicate, ascertain, and establish the insolvency of the estate as of the date of the death of her said husband, or to grant to orator the relief necessary to fix her title to said homestead in fee, without the intervention of the administrator. It is alleged that there is no lawful method by which orator could, on her own behalf, cause said estate to be declared insolvent, except by the aid of this honorable court. It is also averred that no suit is pending to enforce or test the validity of the respondents' title, claim, or incumbrance. The respondents other than the administrator are called upon to set forth and specify their claims, title, interest, or incumbrance, and how and by what instruments they are derived and created. The prayer is that the chancery court will ascertain and decree that the said estate is insolvent, and was insolvent at the time of the death of O'Daniel, that the said real estate constituted his homestead, and that oratrix is entitled to a fee-simple interest therein, and that the nature and extent of her estate be declared and fixed, and that defendants be decreed to have no interest title, and claim to the same, and be enjoined from further asserting any title thereto, and that oratrix's fee-simple title thereto be quieted and protected. Demurrers were interposed by the...