Keith v. McCord

• Decision Date: 01 June 1904
• Citation: 37 So. 267,140 Ala. 402
• Parties: KEITH ET AL. v. MCCORD.
• Court: Alabama Supreme Court

37 So. 267

140 Ala. 402

KEITH ET AL. v. MCCORD.

Supreme Court of Alabama

June 1, 1904

Appeal from Chancery Court, Jackson County; Wm. H. Simpson Chancellor.

Action by John H. McCord, as administrator of the estate of Mary J Kyle, against P. W. Keith and others. From a decree overruling demurrers to the bill, defendants appeal. Affirmed.

John B Tally, John F. Proctor, and Virgil Bouldin, for appellants.

W. H Norwood, for appellee.

TYSON J.

The bill in this cause is filed by John H. McCord, as administrator de bonis non of the estate of Mary J. Kyle, deceased, who was an heir at law of one Wm. H. Robinson, deceased, against the sureties on the administration bond of W. J. Robinson, deceased. It is shown by the bill that Wm. H. Robinson died intestate in 1884, leaving as his heirs at law and distributees Mary J. Kyle, a sister, and Mary J. Stone and W. J. Robinson, children of a deceased brother. Mary J. Kyle died intestate in 1884, and complainant is the administrator de bonis non of her estate. Mary J. Stone died intestate in 1899, leaving a surviving husband and children. It is not shown whether there is an administrator of her estate. W. J. Robinson died intestate in 1902, without making a final settlement as administrator of the estate of Wm. H. Robinson, deceased. No administrator of his estate has ever been appointed. It is further shown that W. J. Robinson, as administrator de bonis non, received assets of the estate of Wm. H. Robinson, which he never accounted for. The purpose of the bill is to have a final settlement of his administration, and to distribute these assets among the distributees. The equity of the bill and the jurisdiction of the court invoked by it is not questioned. Nor is the right of the complainant as the personal representative of Mrs. Kyle, one of the distributees, to maintain the bill questioned. But, if any of these matters were questioned, it would be of no avail. High's Adm'r v. Worley's Adm'x, 32 Ala. 709; Martin v. Ellerbe's Adm'r, 70 Ala. 326; Stallworth's Adm'r v. Farnham, 64 Ala. 259; Woods v. Legg, 91 Ala. 511, 8 So. 342; Bromberg v. Bates, 98 Ala. 621, 13 So. 557.

The first point presented is that the estate of Wm. H. Robinson, which is sought to be settled and distributed, should be represented by an administrator. This necessity is relieved by the averment in the bill that the administrator in chief "paid off and satisfied all the debts and liabilities of the estate of his said intestate." Baines v. Barnes, 64 Ala. 375, 381; Fretwell v. McLemore, 52 Ala. 124; Alexander v. Alexander, 70 Ala. 212; Glover v. Hill, 85 Ala. 41, 4 So. 613. Mrs. Stone having been paid her distributive share of the estate in full, it is unnecessary that her husband and children should be made parties, or that her estate be represented by an administrator. Neither they nor her estate have any interest in the assets sought to be distributed. "It is only persons who have a right or interest, legal or equitable, in the subject-matter of controversy, which may be affected by the decree, who can be made parties to a suit in equity. Persons as to whom no decree can be rendered on a hearing ought not to be made parties." Jones v. Caldwell, 116 Ala. 367, 22 So. 456; Huckabee v. Swoope, 20 Ala. 491.

It is also insisted that the estate of W. J. Robinson should be represented by an administrator. If he were living, and stood in no other relation to the estate of Wm. H. Robinson than as administrator de...