Hale v. Cox

• Decision Date: 11 March 1937
• Docket Number: 7 Div. 407
• Citation: 233 Ala. 573,173 So. 82
• Parties: HALE et al. v. COX.
• Court: Alabama Supreme Court

173 So. 82

233 Ala. 573

HALE et al. v. COX.

7 Div. 407

Supreme Court of Alabama

March 11, 1937

Appeal from Circuit Court, Etowah County; Alto V. Lee, Judge.

Bill by Norma Cox against Della Hale and others, to sell property for division, for accounting, and discovery. From a decree overruling a demurrer to the bill, respondents appeal.

Affirmed.

Motley & Motley, of Gadsden, for appellants.

Reed &amp Reed, of Centre, and O.R. Hood and Roger C. Suttle, both of Gadsden, for appellee.

GARDNER Justice.

Complainant is an heir of Johnson B. Hale who died in November, 1925 leaving a last will and testament in which his widow was appointed executrix without bond, and relieved from accounting as to the administration to any court. Complainant successfully interposed a contest of this will in the equity court, and the decree in her favor was here affirmed. Hale v. Cox, 231 Ala. 22, 163 So. 335.

The administrator was subsequently appointed, on whose petition the administration of the estate was removed into the equity court. Thereupon complainant filed the present bill as an auxilliary proceeding in aid of, and in no manner impeding the administration of the estate, which estate, it is alleged, owes no debts. Hinson v. Naugher, 207 Ala 592, 93 So. 560.

The bill discloses that the estate consisted of much real and personal property, possession and control of which has been under the widow for many years, and a description of which is unknown to complainant; that the personal property has been sold, rents collected, moneys of the estate used, valuable timber from the lands sold, and the proceeds of all used and dissipated by the widow in collaboration with the children of decedent, parties defendant, as they reached the age of majority.

Complainant has received nothing from the estate, and seeks a sale of the property for partition or division among the heirs after the homestead and dower rights have been properly ascertained and protected.

The bill seeks an accounting, and in aid of the relief sought, likewise a discovery. Fiduciary relations are shown with a duty to account. Marx v. Marx, 226 Ala. 684, 148 So. 418; First National Bank v. Bradley, 223 Ala. 22, 134 So. 621. And its averments also suffice to show a right of complainant for a sale of the property for division among the joint owners.

The matter of division of the property and accounting for that consumed or dissipated constitute the primary purposes of the bill, and these independent equities suffice for its maintenance. Discovery is incidental and auxiliary merely.

If the equity of the bill rested upon discovery alone, verification was essential, but the bill containing an independent equity with discovery merely incidental, no verification is required, nor are the allegations necessary to support an independent bill for discovery required in a bill of this character. Shelton v. Timmons, 189 Ala. 289, 66 So. 9.

The authorities relied upon by appellants have reference to bills for discovery alone, and are inapplicable.

And as to complainant's right to file the bill, the case of Hopkins v. Crews, 220 Ala. 149, 124 So. 202, 203 cited by appellants, is readily distinguishable. There...