Henley v. Rucker

• Decision Date: 15 June 1922
• Docket Number: 6 Div. 605.
• Citation: 93 So. 879,208 Ala. 165
• Parties: HENLEY v. RUCKER.
• Court: Alabama Supreme Court

93 So. 879

208 Ala. 165

HENLEY v. RUCKER.

6 Div. 605.

Supreme Court of Alabama

June 15, 1922

Rehearing Denied Oct. 12, 1922.

Appeal from Circuit Court, Jefferson County; Hugh A. Locke, Judge.

Bill by Tom P. Henley against E. W. Rucker, for accounting by the respondent as trustee, for discovery of trust property, and for annullment of transactions had by the trustee. From a decree sustaining demurrer, complainant appeals. Affirmed.

E. O McCord & Son and W. G. Rains, all of Gadsden, for appellant.

Miller & Graham, of Birmingham, for appellee.

ANDERSON C.J.

While the bill in this case, as last amended, makes numerous and sundry charges, and seems to purposely evade setting out the age of the complainant or the date of the decree of insolvency of the estate of Thos. Peters, in its final analysis it seeks to go behind and impeach certain decrees of the chancery court rendered upon the administration of the estate of said Peters, of which Jos. F. Johnston was the administrator with the will annexed. The bill makes many charges against the respondent Rucker, who was named as executor by the will of said Peters, but from aught that appears, all property, real or personal, for which it seeks an accounting was listed and included among the property of the estate of Thos. Peters upon the rendition of the decree of insolvency. The will provided for the payment of the debts of the testator, but, had it not done so, the law makes the claims of creditors superior to the bequest to this complainant, and he has no right or claim upon the property in case the estate was legally declared insolvent. In fact the bill, in effect, charges that the respondent acquired all property that he got from the estate through decrees of the chancery court, and seeks to impeach said decrees by charging, in general terms, a fraudulent collusion with the administrator in the procurement of same. The fraud charged being in most general terms, is but the conclusion of the pleader, and cannot be considered in passing upon a demurrer to the bill. McCreery v. Berney Nat. Bank, 116 Ala 224, 22 So. 577, 67 Am. St. Rep. 105. Nor does the bill aver that the alleged improper claim of Rucker, set out in paragraph 19 of the bill as last amended, caused the insolvency of the estate. In other words, the fraud charged may have been upon the creditors of the estate, and of no detriment to this complainant. Again, it is at least questionable if the bill with the foregoing defects cured by proper amendment would square up to the rule as set out in the decisions of this court. De Soto Co. v. Hill, 194 Ala. 537, 69 So. 948; Hogan v. Scott, 186 Ala 310, 65 So. 209; Hardeman v. Donaghey, 170 Ala. 362, 54 So. 172. Moreover, the bill charges a fraudulent collusion with Jos. F. Johnston, the administrator, in the procurement...