Ex parte Kelly

• Decision Date: 23 April 1942
• Docket Number: 6 Div. 997,6 Div. 9.
• Citation: 8 So.2d 855,243 Ala. 184
• Parties: Ex parte KELLY. KELLY v. BURNS.
• Court: Alabama Supreme Court

8 So.2d 855

243 Ala. 184

Ex parte KELLY.

KELLY v. BURNS.

6 Div. 997; 6 Div. 9.

Supreme Court of Alabama

April 23, 1942

Rehearing Denied June 30, 1942.

Horace C. Wilkinson, of Birmingham, for petitioner.

Harris Burns, of Birmingham, for respondent.

BROWN Justice.

We are not of opinion that Act No. 633, approved July 10th, 1940 conferring on "the Probate Courts in all counties of this State which now have or may hereafter have a population of 400,000 or more, according to the last or any subsequent Federal census * * * general equity jurisdiction concurrent with that of the Circuit Courts, in equity * * * in the administration of the estates of deceased persons, minors and insane persons, including testamentary trust estates" is unconstitutional. Act No. 633, approved July 10, 1940, Acts 1939, p. 1000 and 1001. See supplement to Code of 1940, Title 62, § 181 (1) miscellaneous laws applicable to Jefferson County.

In the enactment of this statute the legislature was well within its plenary powers. Constitution of 1901, § 139. As observed by this court, speaking through Brickell, Chief Justice, in State ex rel. Winter v. Sayre, 118 Ala. 1, 24 So. 89, 90, the clause "and such persons as may be by law invested with powers of a judicial nature" was introduced into the Constitution to insure the right of the General Assembly to confer powers essentially of a judicial nature on other than judicial officers. This clause first appeared in the Constitution of 1868, and was carried into the Constitution of 1875 as Art. IV, § 11, and since the decision in State ex rel. Winter v. Sayre, supra, has been readopted in the Constitution of 1901, with its interpretation in the Winter case supra, and this interpretation has been repeatedly reaffirmed in many cases since. Notably, State ex rel. Ham v. Brock, Clerk, 180 Ala. 505, 61 So. 646; State ex rel. Vandiver v. Burke, Judge, 175 Ala. 561, 57 So. 870; Ex parte Pruitt, 207 Ala. 261, 92 So. 426; In re Opinions of Justices, 209 Ala. 593, 96 So. 487.

The scope of the equity jurisdiction conferred is not as broad as that of the circuit court, but is full jurisdiction to determine, in general, every equitable question arising in connection with decedents' and wards' estates, so far as the question concerns any person before the court by reason of any right in, or obligation to, such estates or trusts. 21 Corpus Juris Secundum, Courts,§ 302, p. 544.

In Rensford v. Joseph A. Magnus & Co., 150 Ala. 288, 43 So. 853, it was observed:

"The jurisdiction of the chancery court over the administration and settlement of estates of deceased persons is original and general. (Citing authorities.) * * * Moreover, this doctrine of the concurrent jurisdiction of the chancery court with the probate court in the administration of estates is recognized in the Constitution of 1901 of this state. Section 149. * * *

"'The chancery court retains its original jurisdiction over the subject of administration, and may be appealed to by any interested party, other than the personal representative, without the assignment of any special reason, at any time before the concurrent jurisdiction of the probate court has attached by the institution in that court of proceedings having substantially the same object. If such proceedings have commenced in the probate court, or if the power of the chancery court be invoked by the personal representative, then some special equitable reason must be assigned to give the chancery court jurisdiction.' * * *." (Paren-thesis supplied.)

This rule in so far as it required the assignment of equitable ground for removal by the personal representative has been modified by statute. Code 1940, T. 13, § 139.

We are further of opinion that when the petition for the appointment of an administrator was filed in the probate court, and that court assumed jurisdiction, appointing the administrator, this constituted it a pending administration subject to removal to the court of equity, notwithstanding there was an appeal from the order of the probate court appointing the administrator. The effect of the removal and appeal was to give the circuit court jurisdiction of the entire proceeding. Constitution of 1901, § 149.

The effect of the decree appealed from-remanding the administration of the estate to the probate court-was to put this branch of the case out of the circuit court, and was such final decree as will support the appeal. Bailey v. Southern Railway Co., 215 Ala. 677, 112 So. 203. That decree was laid in error and must be reversed.

The petition for writ of prohibition is granted, restraining the probate court from further proceeding in respect to the cancellation of the lease. The merit of that proceeding is a matter for consideration of the circuit court.

Writ of prohibition granted.

Reversed and remanded.

GARDNER, C. J., and BOULDIN, FOSTER, and LIVINGSTON, JJ., concur.

THOMAS, J., dissents as indicated in his opinion which follows.

KNIGHT, J., not participating.

THOMAS Justice (dissenting in part as indicated).

The petition and answer present for decision three important questions. (1) Is the act purporting to confer "general jurisdiction" concurrent with that of the circuit courts in equity of this state in the administration of estates of deceased persons, minors and insane persons, including testamentary trusts, unconstitutional? Acts 1939, p. 1000, now codified as Article 18, Subdivision 3A, § 181(1) et seq., T. 62, Alabama Code of 1940. (2) If constitutional, can the probate court exercise its equity jurisdiction in the administration of the estates of deceased persons in advance of the appointment of an administrator in chief, that appointment being held in abeyance by appeal to the circuit court? If the probate court can exercise its jurisdiction in the administration of estates of deceased persons in advance of the appointment of an administrator in chief, is an administrator ad colligendum authorized to file a petition in equity in the probate court to annul a lease made by the decedent and obtain possession of the real estate described in the lease? (3) If the probate court is authorized to receive and act on a petition by the administrator ad colligendum to annul a lease made by the decedent and to obtain possession of the real estate described in the lease, does the fact that its equity jurisdiction was first invoked by a petition of said kind prevent the removal of the entire matter to the circuit court, in equity, at the instance of E. E. Kelly, petitioner for prohibition, the brother of decedent, filing application in probate for letters of administration of said estate, and appellant in the case styled 6 Div. 9?

The foregoing important questions are presented by the undisputed facts now to be recited. The petition and answer of the respondent show that on, to-wit, the 27th day of August, 1941, Lawrence Kelly died. Mrs. L. L. Kelly, his alleged common law wife applied for letters of administration on September 2, 1941, in the Probate Court of Jefferson County, Alabama. On the 3rd day of September, 1941, the petitioner E. E. Kelly, brother of deceased, filed application in the same court for letters of administration on the estate of the said Lawrence Kelly. These petitions came on to be heard on the 9th day of October, 1941. At the conclusion of the hearing letters of administration were ordered issued to the common law wife. It was provided in the order that the letters should not issue until after thirty days from the date of the order. On the 3rd day of November, 1941, E. E. Kelly took an appeal from said order, and that appeal is now pending in the Circuit Court of Jefferson County, and undisposed of at this time.

On the 17th day of January, 1942, the Honorable Eugene H. Hawkins, as Probate Judge of Jefferson County, appointed Harris Burns as special administrator ad colligendum of the estate of Lawrence Kelly, deceased, and he is now serving in that capacity. On the 11th day of February, 1942, the special administrator ad colligendum filed a petition in the Probate Court of Jefferson County, in Equity, in which it was recited that the deceased owned three parcels of real estate in Jefferson County which are designated as Parcel One, Parcel Two and Parcel Three in the petition. Parcel One is known as the Hollywood Hotel Cottages; Parcel Two is known as the Birmingham Tourist Court; and Parcel Three, while not so identified in the petition, for convenience, will be referred to as the filling station property.

The petition recites that Lawrence Kelly executed a mortgage on a part of the Birmingham Tourist Court property on Aug. 1, 1941, to Steiner Brothers to secure an indebtedness of $9,000, which mortgage is recorded in Vol. 3219, p. 44, in the Office of the Probate Judge of Jefferson County. The petition recites that Lawrence Kelly executed a mortgage to R. C. Norris on the Hollywood Hotel Cottages property dated Jan. 17, 1936, and recorded in Vol. 2227, p. 184, in the Office of the Probate Judge of Jefferson County, securing an indebtedness of $5,000, payable in monthly installments, and that this mortgage was foreclosed on Nov. 14, 1941, and the property purchased by the mortgagee for the sum of $2,038.48, which was the amount of the unpaid balance of the mortgage indebtedness. It is averred that the mortgagee subsequently conveyed that property to E. E. Kelly for $100, and that Kelly then executed and delivered a purchase money mortgage to the mortgagee to secure the balance of the unpaid purchase price amounting to $1,979.68.

The petition further recites that the Birmingham Tourist Court property and the Hollywood Hotel Cottages were leased by Lawrence Kelly to E. E. Kelly for a term of ten years from the 1st day of March, 1937,...