Harland v. Person

• Decision Date: 26 May 1891
• Citation: 9 So. 379,93 Ala. 273
• Parties: HARLAND v. PERSON ET AL.
• Court: Alabama Supreme Court

9 So. 379

93 Ala. 273

HARLAND v. PERSON ET AL.

Supreme Court of Alabama

May 26, 1891

Appeal from chancery court, Colbert county; THOMAS COBBS Chancellor.

Bill in chancery by Alfred S. Person, as executor of the will of W H. Person, against Sarah J. Harland, one of the devisees, to remove the administration from the probate to the chancery court, on the ground that the will created trusts which the former court was incompetent to administer, and for a settlement of the estate, and an accounting between the devisees. The chancellor refused to allow the defendant to incorporate a demurrer to the bill in her answer, and then overruled both the defendant's demurrer and her motion to dismiss the bill for want of equity. On final submission upon the pleadings and the register's report, the chancellor confirmed the register's report, and decreed that the defendant pay the plaintiff $2,670.16. All these decrees are separately assigned as error on this appeal which is prosecuted by the defendant.

J. B. Moore, for appellant.

CLOPTON J.

The will of W. H. Person was admitted to probate, and letters testamentary granted to appellee, in August, 1867, by the probate court of Colbert county. By the will, the testator devised certain designated lands to John A. Person in trust for the use and benefit of William H. Person, a grandson, and devised and bequeathed certain other designated lands, and his personal property, to appellee and appellant, Sarah J. Harland, jointly. The will further provided that appellee and Sarah J. Harland (who was then unmarried) should jointly pay all the debts of the testator, and then pay John A. Person, in trust for his grandson, an amount in money sufficient to make his portion equal with theirs. The objects of the bill filed by appellee in January, 1874, are the removal of the administration of the estate from the probate court, and its settlement in the chancery court; also to obtain a settlement of the joint cultivation, by complainant and Sarah J. Harland, of the lands devised to them jointly, during the years 1867 to 1869, inclusive, and the ascertainment of the amount of debts of the testator paid with the proceeds of the joint crops the amount paid by each individually, and the valuation of the real and personal property in accordance with the provisions of the will. After averring the death of the testator, the probate and provisions of his will, and the appointment of complainant as executor, the bill alleges that John A. Person took possession and has had possession of the lands devised to him in trust since January, 1868; and that complainant and Sarah J. Harland have been in possession of the lands and personal property devised and bequeathed to them, lived together on the lands, until her marriage, in 1870, jointly cultivating them. After her marriage the lands and personal property were divided equally between them. The bill further alleges that debts were contracted in carrying on the farming operations and in housekeeping, which were paid out of the proceeds of the joint crops, the balance being applied to the payment of the debts of the testator; also that complainant and Sarah J Harland have each paid debts of the testator with their individual means, a statement of the debts paid by each being attached. On May 16, 1877, without an answer from Mrs. Harland, or a decree pro confesso, so far as the record discloses, the chancellor rendered a decree, confirming a report of the register made under a former decretal order, and also that complainant have and recover of her the sum of $1,360.46. On October 12, 1881, this decree, and all proceedings thereunder, were by agreement of parties, set aside, the cause reinstated on the docket, and Mrs. Harland allowed 30 days in which to answer and defend. Within the time allowed she filed a demurrer to the bill, and afterwards an answer, and a motion to dismiss the bill for want of equity. On May 19, 1888, Mrs. Harland moved the court for leave to incorporate the demurrer in the answer.

If a demurrer, on which no ruling is asked for obtained, is, under our statute, superseded by an answer subsequently filed, proceeding to a hearing on the demurrer, without objection taken by a motion to strike it from the files, is deemed a waiver of the irregularity. It has also been ruled that under the statute of amendments in equity the court is bound, on application, to permit the demurrer to be incorporated in the answer at any time before final decree, though a denial will not reverse the decree, if the defendant is not prejudiced thereby. Shaw v. Lindsey, 60 Ala. 344; Ruse v. Bromberg, 88 Ala. 619, 7 South. Rep. 384. Notwithstanding the refusal to allow the demurrer to be incorporated in the answer, the chancellor nevertheless considered and overruled it. This brings the merits of the demurrer fairly and fully for revision.

The main causes assigned are the omission of the bill to show any special ground for the removal of the administration into a court of chancery, and multifariousness, in this: that the administration and settlement of the estate, the settlement of the accounts between the complainant and Mrs. Harland arising from their joint farming business and housekeeping, and concerning the payment of the debts of the testator, are united in one bill. Though the concurrent jurisdiction of the chancery and probate courts over the administration of estates has been repeatedly recognized, it is well settled that an administrator or executor must proceed in the probate court, unless there exists some special equity, which the probate court, because of its limited jurisdiction, is incompetent to administer; and that a court of equity will not, at the instance of the personal representative, take jurisdiction of his administration, unless it affirmatively appears that the probate court cannot afford adequate...