Fidelity & Deposit Co. of Maryland v. Hendrix

• Decision Date: 24 March 1927
• Docket Number: 6 Div. 749
• Citation: 112 So. 117,215 Ala. 555
• Court: Alabama Supreme Court
• Parties: FIDELITY & DEPOSIT CO. of MARYLAND et al. v. HENDRIX.

112 So. 117

215 Ala. 555

FIDELITY & DEPOSIT CO. of MARYLAND et al. v. HENDRIX.

6 Div. 749

Supreme Court of Alabama

March 24, 1927

Appeal from Circuit Court, Jefferson County; William M. Walker Judge.

Bill in equity by Ruby Hendrix, by her next friend, L.E. Hendrix against C.O. Garrard, as administrator of the estate of Julian Hendrix, deceased, the Fidelity & Deposit Company of Maryland, George Hendrix, Eugene Hendrix, Aline Hendrix Hicks, and Margaret Hendrix, to vacate decree of final settlement of the administration rendered by the probate court, etc. From a decree overruling demurrer to the bill respondents Fidelity & Deposit Company and C.O. Garrard appeal. Affirmed.

Frank S. White & Son, of Birmingham, for appellant Fidelity &amp Deposit Co.

William S. Pritchard and John D. Higgins, both of Birmingham, for appellee.

BROWN J.

This bill is filed by the appellee, a minor, suing by her next friend, alleging that she is an heir at law of Julian Hendrix, deceased, against the appellant Garrard, as the administrator of the estate of said Julian Hendrix, the Fidelity & Deposit Company of Maryland, the surety on his bond as administrator, and the other heirs at law, to vacate and annul the decree of the probate court of Jefferson county entered on the final settlement of said estate, to ascertain the amount due the complainant as a distributee of said estate, and for a decree against the administrator and his surety for the sum so ascertained to be due her, and for other relief.

The complainant's theory is that the decree of the probate court was obtained by the administrator through fraud in the management of the proceedings in the probate court, so as to effect a final settlement of the estate without making the complainant a party thereto, and without notice to her. To the end of showing such fraud as would justify the intervention of a court of equity to avoid the decree, the bill avers, in substance, that the administrator, with the knowledge that the complainant was an heir at law of the said Julian Hendrix, deceased, and entitled to a distributive share of his estate, when he filed his accounts for final settlement, in undertaking to comply with the statute which required him to "file a statement, on oath, of the names of the heirs and legatees of such estate, specifying particularly which are under the age of 21 years" (Code of 1923, § 5901), made a false affidavit omitting the name of the complainant, who was then only 12 years of age and had no knowledge of the pendency of the proceedings in the probate court. That said "administrator, for the purpose of perpetrating a fraud upon the probate court of Jefferson county, Ala., knowingly and willfully concealed from the said probate court her relationship to the decedent, as a proximate consequence of which fact the error of fact occurred in the settlement of the estate of said decedent, which error consisted in this, that she was not named as one of the heirs or distributees of said estate in said probate court proceedings, and as a proximate consequence of which said error of fact she was injured in that she did not receive her distributive share or anything from her said brother's estate. That she is a minor of tender years, that she had no notice or knowledge whatever that letters of administration had been taken out upon said estate, or a final decree rendered therein until, to wit, the 7th day of May, 1923, when this proceeding was instituted."

These averments when taken as true, as must be done on demurrer present a case of fraud extrinsic to the trial of the issues presented to and considered by the court in passing the final settlement, and "constitute a case of fraud in the management of the proceedings in the probate court--to employ the language of the decisions--in the concoction of the decree," unmixed with fault or negligence on the part of the complainant, and are sufficient under the statute to authorize intervention by a court of equity to avoid the decree. Code of 1923, § 6482; Danne v. Stroeker et al., 210 Ala. 483, 98 So. 79; Martinez et al. v. Meyers et. al., 167 Ala. 456, 52 So. 592; Rittenberry v. Wharton, 176 Ala. 390, 58 So. 293; Edmondson v. Jones, 204 Ala. 133, ...