Jacobs v. Murphy

• Decision Date: 24 February 1944
• Docket Number: 8 Div. 267.
• Citation: Jacobs v. Murphy, 245 Ala. 260, 16 So. 2d 859 (Ala. 1944)
• Parties: JACOBS v. MURPHY.
• Court: Alabama Supreme Court

16 So.2d 859

245 Ala. 260

JACOBS v. MURPHY.

8 Div. 267.

Supreme Court of Alabama

February 24, 1944

Brown, Scott & Dawson and Proctor &amp Snodgrass, all of Scottsboro, for appellant.

H T. Foster, of Scottsboro, and A. E. Hawkins, of Fort Payne for appellee.

FOSTER Justice.

This is a bill in equity to remove the administration of the estate of West Murphy into that court and to have complainant declared to be his widow, and to have her children declared to be his sole heirs and distributees, and to have the homestead and personal exemptions set off to her as such. It alleges that she was his widow by marriage under their mutual consent and agreement entered into about April 1, 1894, and that thereafter they lived together as man and wife and six children were born to them, three of whom died prior to the death of West Murphy, and the other three are over twenty-one years of age. The administrator of the estate was the only party respondent. The court made an order removing the administration of the estate to the circuit court, in equity. The demurrer raises the question of the necessity of making parties his collateral kin who are named in the petition for letters as his heirs. The bill alleges that the administrator named his brothers and sisters and descendants of his brothers and sisters as his sole heirs. It does not state their names and ages. The court overruled the demurrer. The administrator then answered the bill as amended, denying that complainant was the widow of deceased.

There was much evidence and on it the court decreed that she was his common law wife as alleged, and entitled to a widow's interest, and ordered appraisers to set apart such interest to her.

It contains the following recital: "And it further appears that the next of kin of West Murphy although not actually respondents in this cause, were represented by counsel at the taking of testimony." This statement is challenged in brief as finding no support in the record, that it is gratuitous, and is not controlling in determining the necessity of such persons as parties.

It is apparent that the real issue in the case is whether the complainant was the common law wife of decedent. If she was not, she cannot in the first place cause a removal of the estate into equity. Section 139, Title 13, Code of 1940, confers such right upon the petition of any person entitled to share in the distribution of the estate verified by affidavit, and containing the other statutory allegations, and no notice to adverse parties is necessary. Little v. Burgess, 240 Ala. 552, 200 So. 566; Id., 244 Ala. 447, 13 So.2d 761. The bill contains the statutory allegations and is sworn to.

So that to the extent that it challenges the order removing the cause into equity the demurrer is not well taken. Little v. Burgess, supra. In the Burgess case a motion was made to expunge the order, but in acting on it no question of fact was passed on. Probably the appropriate way to reach that issue in a preliminary proceeding would be a motion to vacate the order of removal and to retransfer the administration to the probate court, alleging that petitioner was not interested in the estate as she claims. And on that motion, the question of fact could be tried. See, McCraw v. Cooper, 215 Ala. 51, 108 So. 850. That course was not pursued in any respect. The demurrer treats the allegations of the bill as true. It is not only a petition to remove the administration, but seeks to have homestead rights of the widow set off to her, and to have her and her children declared to be the sole heirs and distributees of decedent. And this was done by the final decree.

The question raised by the demurrer is whether the bill is sufficient as one by the alleged widow seeking a declaratory judgment and showing that there are those who claim to be heirs at law and whose interests are adverse to her and to her children, and would be directly affected by the decree, but are not made parties to the bill. The bill seeks in effect to have them excluded from participating as heirs, by having complainant and her children declared to be the sole heirs and distributees of the estate. Those allegations make a justiciable issue for a declaratory judgment between her and her children on one hand, with the brothers and sisters or their descendants on the other. The trial court found and decreed for complainant, the effect of which is to cut off the collateral kin, without an opportunity to be heard.

On the other hand, a ruling favorable to the administrator would purport to cut off complainant's children as heirs without giving them an opportunity to be heard. All interested persons were made parties in the case of Little v. Burgess, supra. In that aspect of the bill the collateral kin and complainant's children are all alike necessary parties.

It is claimed that, insofar as it seeks to have the homestead set apart to the alleged widow, it is not necessary to make the collateral kin parties because by section 138, Title 13, Code of 1940, the circuit court thus administering an estate "may, in its discretion, proceed according to its own rules and practice, without regard to any of the statutory requirements provided for administration of estates in the probate court," and that a petition in the probate court by a widow under section 674, Title 7, Code of 1940, may be primarily heard without any notice to the heirs; and that therefore the circuit court may in its discretion do likewise. Those and the succeeding statutes do not contemplate that an issue of fact in any respect shall be heard and determined, whereby the status of the parties shall be determined without a hearing on that question. Section 677, Title 7, Code of 1940, requires notice to the next of kin of decedent, and section 678, Title 7, Code of 1940, provides for an issue to be made up and tried as other issues in that court are tried. The case of Tatum v. Williams, 235 Ala. 114, 177 So. 629, involved the invalidity of a ceremonial and registered marriage on account of insanity of the husband, tried on a contest of the report of the appraisers making that issue. The Court affirmed a finding of sanity, but reserved its approval of the trial of such an issue in that proceeding.

There are many collateral questions which the probate court cannot determine in such a proceeding. Laurance v. Mitchell, 244 Ala. 678, 15 So.2d 583; Cassady v. Davis, Ala.Sup., 15 So.2d 909. But conceding that it is within the competence of the probate court, it would only be exercised upon an issue made up and heard wherein all interested parties had legal notice. And that is emphatically true in a court of equity. The effect of the provisions of section 138, Title 13, Code of 1940, was stated in Anderson v. Steiner, 217 Ala. 85, 115 So. 4, 6, as follows: (the equity court) "exercises the jurisdiction thus acquired, including the substantive law governing the administration of estates in the probate court, but is unhampered by the rules of practice and procedure obtaining in the probate court * * * and moves in its own way to effectuate equity in all respects possible at the time."

The bill here in equity did not seek to...