Hurt v. Hurt

• Decision Date: 20 May 1908
• Citation: Hurt v. Hurt, 157 Ala. 126, 47 So. 260 (Ala. 1908)
• Parties: HURT v. HURT ET AL.
• Court: Alabama Supreme Court

47 So. 260

157 Ala. 126

HURT v. HURT ET AL.

Supreme Court of Alabama

May 20, 1908

Rehearing Denied July 3, 1908.

Appeal from Chancery Court, Perry County; Thomas H. Smith Chancellor.

Administration suit by J. W. Hurt, executor, against Annie E. Hurt and others, for discovery and accounting, in which Nell Hurt Hanna filed a cross-bill asking that the executor give bond or that a receiver be appointed. From an order appointing a receiver, plaintiff appeals. Affirmed.

De Graffenried & Evins, for appellant.

Jeffries & Pettus and W. M. Fowlkes, for appellees.

DENSON J.

The jurisdiction of the chancery court in the administration of estates is original (McNeill's Adm'r v McNeill, 36 Ala. 109, 115, 76 Am. Dec. 320; Ligon v Ligon, 105 Ala. 460, 17 So. 89), and it is the privilege of the executor, at any time before the concurrent jurisdiction of the probate court has attached, when he finds the affairs of the estate so much involved that he cannot safely administer the estate except under the directions of a court of equity, to ask the interference of the chancery court, and for a removal of the administration of the estate into that court. What will constitute sufficient grounds for such interference is a question determinable by the chancery court. But it is a subject of express decision by this court that "when the trusts of a will are doubtful, or the personal representative may have difficulty or be embarrassed in the execution of such trusts, a court of equity will, at his instance, take jurisdiction to construe the will, and aid and direct the executor in the performance of his duties." So, likewise, when it is shown that a discovery and an accounting on the part of some of the distributees of the estate, is necessary to a proper adjustment and settlement of the estate, this furnishes sufficient reasons for the interference of a court of equity. Horton v. Moseley, 17 Ala. 794; Cowles v. Pollard, 51 Ala. 445; Trotter v. Blocker, 6 Port. 269; Sellers v. Sellers, 35 Ala. 235; Hunley v. Hunley, 15 Ala. 91; Clay v. Gurley, 62 Ala. 14; McNeill's Adm'r v. McNeill, 36 Ala. 109, 76 Am. Dec. 320; Ligon v. Ligon, 105 Ala. 460, 17 So. 89; Baker v. Mitchell, 109 Ala. 490, 20 So. 40; Wilson v. Crook, 17 Ala. 59. See, also, Virginia, etc., Co. v. Hale & Co., 93 Ala. 542, 9 So. 256, in respect to discovery as an independent head of equity jurisdiction. It is also settled law that when chancery once takes jurisdiction of an administration, on any ground of equitable interposition, the cause will be retained, and the administration will be conducted and finally settled in that court, according to the rules and practice of a court of equity; but substantive law regulating the conduct and settlement of administrations in the probate court will be applied. Cowles v. Pollard, supra; Hall v. Wilson's Heirs, 14 Ala. 295; Taliaferro v. Brown, 11 Ala. 702; Tygh v. Dolon, 95 Ala. 269, 10 So. 837.

In this case which is one by an executor for the removal of an estate into the chancery court and settlement there, no question as to the equity of the original bill has been presented; and we have no doubt that on its face the bill presents a proper case for equitable interference. Authorities supra. Nell Hurt Hanna, one of the respondents, of whom a discovery and an accounting is sought, filed a full answer, under oath, denying specifically the allegations of the bill, upon which the right of discovery is based, and denying that she had ever received or had in her possession any property of the estate for which she should be held to account. The affirmative allegations of the answer are to the effect that by a deed or bill of sale the testator had given to her and her co-respondents, against whom discovery is sought, personal property, which is included in Exhibit G attached to the cross-bill, and that the executor took said property into his charge and custody. It is further shown in the answer, by averments which we deem sufficient, that a devastavit has been committed by the executor, that he has converted much of the personal property to his own use, and that he is insolvent. The answer further shows that there is a large quantity of personal property of the estate yet in the hands of the executor, in which the respondents are interested, and that unless the executor, who is exempted by the will from giving bond, is required to give bond, the interest of the respondent in the estate will be endangered for want of such security (Code 1896, § 67). The prayer of the answer is that it be taken and considered as a cross-bill; that the property mentioned in Exhibit G be decreed to be the property of Nell Hurt Hanna, and of Theodore, Annie E., and Virginia Allen Hurt; that the executor be required to give bond, or, in the event that he fails to give bond, that the assets of the estate be committed to the hands of a receiver. The chancellor made an order requiring the executor to give bond by a date fixed, and directed that the question of the appointment of a receiver in the cause be postponed, to be thereafter considered on motion of any party to the cause. The executor failed to make the bond required by the order, and on the application of the cross-complainant a receiver was appointed; the chancellor requiring, as a condition precedent to the appointment, that the cross-complainant execute a bond in the sum of $2,000. From the order appointing the receiver this appeal is taken.

It is insisted that the decree appointing the receiver is reversible upon either one of several grounds. We may not consider the several points of attack in the order in which they are discussed in the brief of counsel, but shall endeavor to take them in their logical order. First, then, it is insisted that the court had no right or authority to make the appointment, because no order had been made in the chancery court for the removal of the administration into that court from the probate court; that the decree was premature, in that the court had not assumed jurisdiction of the cause. This objection would seem to come with little grace from the appellant, who invoked the jurisdiction of the court by filing his bill, and who has litigated the question of the appointment of the receiver, without any suggestion of premature action on the part of the chancery court, in that court. But, aside from this consideration, we think "the effect of the original bill, conceding that it is well filed, was to withdraw the administration of the estate from the probate court" and to give the chancery court jurisdiction to proceed with the cause according to its rules of practice. Pearson v. Darrington, 21 Ala. 169, 176; Tygh v. Dolan, 95 Ala. 269, 10 So. 837.

The next point in logical order is that the cross-bill is not sufficient in its averments to show reasonable probability that the cross-complainant will ultimately succeed in obtaining the relief sought by the cross-bill. It is undoubtedly the law that the probability that the complainant will ultimately be entitled to relief is a material element for consideration by the court, and our court has gone to the extent of holding that if ultimate success is a matter of grave doubt the appointment of a receiver should not be made. Bank of Florence v. United States, etc., Co., 104 Ala. 300, 16 So. 110; Builders', etc., Co. v. Lucas & Co., 119 Ala. 202, 24 So. 416; Randle v. Carter, 62 Ala. 95. In the case first cited the court, through Brickell, C.J., after announcing the rule as above stated, added this further observation: "It is true, as a general rule, that in making or refusing the appointment of a receiver the court will not forestall or anticipate the decision which may be made on final hearing. This is true when a case is presented upon which there is a reasonable probability the plaintiff may ultimately obtain relief. In such cases the pleadings may not be drawn with technical accuracy, or the bill may be subject to demurrer for want of proper parties, or because of defects of form, or the absence of substantial allegations--insufficiencies curable by amendment. These insufficiencies, of themselves, do not form an impediment to the appointment of a receiver, if a case be made by a party having interests to be protected and preserved, entitling him to the general relief which is prayed." Bank of Florence v. United States, etc., Co., supra. It is clear from this that the suggestion of lack of parties, made by the executor, even if such suggestion would be considered as well made on a demurrer cannot avail him anything on this appeal. Micou v. Moses Bros., 72 Ala 422.

But the point most relied on by the appellant, in respect to the insistence under consideration, is that the affirmative relief prayed is that the personal property shown in Exhibit G, attached to the answer and cross-bill, be decreed to be the property of the cross-complainants, Theodore, Annie E and Virginia Allen Hurt, and that they are entitled to the same. It is not necessary here to determine whether the doctrine of complete and adequate remedy at law is applicable in respect to this claim, nor whether there was a completed gift of the property by the testator in his lifetime. Conceding (without deciding) that the position taken by the respondent in the cross-bill in regard to this particular point in the insistence is correct, yet it must be borne in mind that that particular relief is not all that is prayed in the cross-bill, nor all that can be awarded the cross-complainant, if the allegations of her bill should be established. The executor may be charged, on proof of the allegations, under the general prayer for relief in the cross-bill, with the proceeds of a large amount of property alleged to have been converted by him to his own use, and for which...