Johnson v. Porterfield

• Decision Date: 24 January 1907
• Citation: 43 So. 228,150 Ala. 532
• Parties: JOHNSON v. PORTERFIELD ET AL.
• Court: Alabama Supreme Court

43 So. 228

150 Ala. 532

JOHNSON v. PORTERFIELD ET AL.

Supreme Court of Alabama

January 24, 1907

Rehearing Denied March 2, 1907.

Appeal from Chancery Court, Butler County; W. L. Parks, Chancellor.

Proceeding by J. R. Porterfield, as administrator, of Martha Calloway deceased, for the sale of a decedent's real estate to pay debts, etc., in which Frank Johnson filed objections. From an order overruling such objections, Johnson appeals. Affirmed.

Martin & Martin, for appellant.

Powell & Hamilton, for appellees.

SIMPSON J.

From the record in this case it appears that J. R. Porterfield the principal defendant, was guardian of Martha Calloway, who was non compos mentis; that after her death he also became administrator cum testamento annexo of her estate; that on June 12, 1902, appellant, Frank Johnson, filed a bill in the chancery court of Butler county against said Porterfield and other defendants, in which said Johnson claimed to be an heir of said Martha Calloway. Said bill, as originally filed, sets out the will of Sheridan Calloway (husband of Martha, who died before his said wife died), attaches a copy as an "exhibit," and describes a number of parcels of property in which it is stated that said husband and wife each owned a half interest. It alleges, also, that Porterfield, as administrator of Sheridan Calloway, had attempted to convey certain parcels of said property; that he had not filed a correct inventory; that he had attempted to make a settlement between the estate of Sheridan Calloway and the estate of Martha Calloway, the lunatic of whom he was guardian, etc. It then alleges the death of said Martha T Calloway, sets out a copy of her will, and claims that she was non compos mentis when the same was executed, etc. The prayers of said original bill are: (1) That the will of said Martha T. Calloway be annulled; (2) that the estate of said Martha T. Calloway be removed from the probate into the chancery court; and (3) for general relief.

An "amended bill" was subsequently filed, alleging that Martha T. Calloway, at the time of her death, was the owner of the property described; that Porterfield was appointed administrator of her estate with the will annexed; that all of the legatees under her will died before she died, and that the legacies thus became lapsed; that Porterfield had failed to file inventories, accounts, and vouchers as required by law; that complainant is entitled to the proceeds of the estate of his said sister, Martha T. Calloway--and the prayers are: (1) That her estate be removed into the chancery court; (2) that the court order an accounting between complainant and said Porterfield as administrator; and (3) for general relief. Before any answer was filed to either the original or amended bill, an amendment to the amended bill was filed, which states that complainant "amends his amended bill of complaint so that the same shall read as follows," and at the close of it states that "complainant amends his said amended bill of complaint, so that the following shall constitute the entire bill, prayers thereto, and footnote, and in lieu of his said amended bill of complaint, and he amends his said bill, as amended on the 19th day of October 1903, by striking out the names of all the parties defendant not named in the foregoing amendment, and strikes out all facts and statements contained in the original bill and in the amendment thereto filed in the cause on the 19th day of October, 1903, not alleged in the foregoing amendment."

So it is clear that this last amendment is a substitute for all that had gone before, and was the only bill before the court. This bill alleges the declaration of lunacy of said Martha T. Calloway on October 13, 1899, the appointment of Porterfield as her guardian, his qualification, the death of said ward February 25, 1902, the execution of her will and its due probate, the appointment of Porterfield as her administrator with the will annexed and his qualification, and that he has never made any final settlement either as guardian or administrator. It then sets out the second item of the will of Martha T. Calloway, leaving her property to her husband for life, and after his death to her brother, Wesley Johnson, her sister, Caroline Johnson, and her stepdaughter, Carrie Herbert, wife of William Herbert, their heirs, executors, administrators, and assigns, and alleges that all of said legatees died before said Martha, so that said legacies lapsed, and that the estate of said decedent belongs to complainant (her brother), the children of Wesley Johnson, who are Lizzie Morgan, Josephine Johnson, Martha Dennis, Joe Johnson, and Annie Johnson; also that Caroline left no children, and complainant is entitled as an heir of said Martha T. Calloway to one-half of her estate, and said children of Wesley Johnson to the other half. He makes said Porterfield and all of said persons parties defendant, and prays that the estate be moved into the chancery court; that Porterfield, both has administrator and as guardian, be requested to file his accounts and vouchers with the register; and that the register state the accounts.

All of the defendants answer, confessing the allegations of the bill, and Porterfield says that he has made partial settlements, but will be glad to make final settlement. A decree was rendered in accordance with the prayer of the bill, and the register ordered to give the usual notice before stating the accounts. The solicitors for all of the parties then signed an agreement to the effect that, in accordance with previous partial settlements, there is due said Porterfield $300 as administrator and $300 as guardian of Martha T. Calloway, and that the same be so reported by the register and decreed by the chancellor. This agreement states in the body of it that it is also signed by "A. E. Gamble, as guardian ad litem for Bertha Johnson, a minor"; but it is not signed by such person. The register made his report accordingly, and on July 11, 1904, the chancellor rendered a decree affirming the report of the register, decreeing that said amounts were due said Porterfield, that he be reimbursed the same out of the assets of the estate of said Martha T. Calloway, "and that for that purpose he is authorized and directed to retain and hold the assets of said estate, both real and personal, under the directions and orders of this court, until he be reimbursed for the amount ascertained to be due him, subject to such further orders in reference to the same as may be made by this court."

While the original case was still standing on the docket "subject to such future orders, in reference to the same, as may be made by the court," said J. R Porterfield, as administrator and as guardian, files his petition, setting out the previous proceedings, alleging that the personal property of said estate is wholly...