Irwin v. J.S. Reeves & Co.

• Decision Date: 05 March 1931
• Docket Number: 8 Div. 243.
• Citation: 222 Ala. 647,133 So. 692
• Parties: IRWIN ET AL. v. J. S. REEVES & CO.
• Court: Alabama Supreme Court

133 So. 692

222 Ala. 647

IRWIN ET AL. v. J. S. REEVES & CO.

8 Div. 243.

Supreme Court of Alabama

March 5, 1931

Rehearing Denied April 23, 1931.

Appeal from Circuit Court, Morgan County; James E. Horton, Judge.

Bill by J. S. Reeves & Co. against Agnes B. Irwin, individually, and as administratrix of the estate of D. W. Irwin, deceased, and others, to remove administration of the estate from the probate court to the circuit court in equity, for discovery accounting, etc. From a decree overruling a demurrer to the bill, respondents appeal.

Affirmed.

S. A Lynne, of Decatur, for appellants.

E. W Godbey, of Decatur, for appellee.

GARDNER J.

Complainant as a simple contract creditor of D. W. Irwin, deceased, whose estate is being administered in the probate court, with no steps being taken looking to a final settlement thereof, had the right to file this bill for the removal of the administration of the estate into the equity court. Carter v. Hutchens, 221 Ala. 370, 129 So. 8.

It is well recognized by our decisions that there should be no splitting up of an administration any more than any other cause of action, a principle recently expressed in Bynum v. Brewer, 217 Ala. 52, 114 So. 577, 579, in the following language: "When the administration was removed in the circuit court in equity for any purpose, or in any part, it went there as a whole and for all purposes, and that court, having exclusive jurisdiction, must proceed to settle every question arising in the course of administration and to a final and complete settlement."

The argument in support of the demurrer rests upon the insistence that the defendants, other than the administratrix, are not proper parties to the bill. That this argument can have no application to the heirs of decedent, distributees of the estate, is too clear for discussion. As pointed out in Hodge v. Joy, 207 Ala. 198, 92 So. 171, in the case of Keith v. McCord, 140 Ala. 402, 37 So. 267, cited by appellant, Mrs. Stone, deceased, had been paid in full her share of the estate before her death, and for this reason there was no necessity that her husband and children be made parties defendant to the bill.

The administratrix is charged with wrongful diversion of the funds of the estate, and for misconduct, for which, if injury to the estate results, the surety may be held liable. Applying the principle first above noted, we are of the opinion the surety on the bond of the administratrix is a proper party defendant to the end there may be a final and complete settlement of the administration. Keith v. McCord supra. And a like reasoning justifies the ruling that the Tennessee Valley Bank is also a proper party. The bill charges that the bank held certain collateral for decedent's original indebtedness to it, but of what these consisted complainant does not know, and cannot ascertain without a discovery; but that the administratrix had paid large sums of money to said bank, and the bank has collected a...