Little v. Gavin

• Decision Date: 18 March 1943
• Docket Number: 8 Div. 205.
• Citation: 244 Ala. 156,12 So.2d 549
• Parties: LITTLE et al. v. GAVIN.
• Court: Alabama Supreme Court

12 So.2d 549

244 Ala. 156

LITTLE et al. v. GAVIN.

8 Div. 205.

Supreme Court of Alabama

March 18, 1943

Appeal from Circuit Court, Franklin County; Chas. P. Almon Judge. [Copyrighted Material Omitted]

The bill makes parties respondent Agnes B Little, H. Fontaine Little, Charles E. Hughes, Jack Holland (doing business under the name of Pioneer Motors), Alfred Devaney, Dellie Devaney, Mandy Lucas and John Lucas.

It is alleged that in April, 1937, deceased turned over, delivered or entrusted to respondents Little (sister and nephew of deceased) a large sum of money to be invested by them in real estate, the title to be taken in his name; that said respondents accepted said money for said purpose but never made said investment and never returned said money to deceased, but converted same to their own use. Complainant seeks a return of this money to him as special administrator.

It is alleged that in January, 1938, decedent (then of advanced age and mentally incompetent to transact business) executed to Agnes B. Little a deed conveying his half interest in certain 25 acres of land, valuable for minerals; that mines on the land were operated under an arrangement with Mrs. Little, whereby she received large sums of money and the value of the property was destroyed; that said property is a part of the estate and said deed to Mrs. Little should be cancelled as having been obtained by undue influence and fraud, and that the amounts received by Mrs. Little as royalties belong to the estate and should be accounted for by her.

It is alleged that respondent Hughes occupied certain lands of deceased and is due the estate the rental value thereof. It is further alleged that Hughes has refused to surrender possession of said land to complainant upon demand, and a judgment requiring him to surrender such possession is also sought.

It is alleged that said Hughes is indebted to deceased, as evidenced by a note and mortgage on an automobile. Judgment for said indebtedness is sought.

It is alleged that said automobile is in the possession of respondent Holland, doing business as Pioneer Motors, who claims some lien upon said automobile. Adjudication as to validity and priority vel non of this lien is sought.

It is alleged that there came into possession of complainant a note executed to deceased by respondents Devaney, secured by mortgage on real estate; that said respondents claim said note has been paid. Ascertainment of payment vel non of said note is sought.

It is alleged that decedent entered into a contract with respondents Lucas, agreeing to convey to them certain real estate upon certain terms; that said respondents have expressed a readiness and willingness to pay the sum agreed upon execution of a deed to them. The bill seeks an adjudication by the court of the legality of said contract and authorization for execution of deed by complainant.

J. Foy Guin, of Russellville, for appellants.

Key & Key, of Russellville, for appellee.

THOMAS Justice.

The appeal is from the overruling of demurrers to the bill by a special administrator of the estate of Charles R. Burgess, deceased.

There are two appeals by separate parties challenging the action of the trial court in overruling respective demurrers to the bill of the special administrator, presented by one record, and will be considered together. Tennessee Coal, Iron & R. Co. v. Hartline, Ala.Sup., 11 So.2d 833. This is in accord with the written agreement of counsel.

This case may be stated generally that said Burgess left an instrument in writing, claimed by the appellant Agnes B. Little to be his last will and testament. Under this will the entire estate would have gone to Agnes B. Little, a sister of decedent. Mrs. Little offered the will for probate, and a contest thereof was instituted by certain heirs of the deceased. This contest resulted in favor of the contestants and the same is reported as Little v. Sugg, 243 Ala. 196, 8 So.2d 866. This court has knowledge of the record on the former appeal, and it shows several parties (all the next of kin of said decedent Mr. Burgess), who are not made parties to the instant bill. The bill before us shows real and personal properties of decedent to be affected by its prayer.

Pending this contest, the Judge of Probate of Franklin County, Alabama, appointed Foster Gavin as special administrator of the estate. On proper petition by an heir at law of the deceased, the administration of the estate was removed to the Circuit Court in Equity of Franklin County. Ex parte Kelly, 243 Ala. 184, 8 So.2d 855. Thereafter Gavin, as administrator filed the bill of complaint in this case for the purpose of reclaiming the estate of the decedent for administration, consisting of real and personal properties, and to recover certain items of such property which are claimed to be assets of the estate.

The bill asked for instructions of the court as to specific matters. It is asserted in brief of counsel that since the filing of the bill, the termination of the will contest, said Gavin has been duly appointed as administrator, instead of special administrator. This fact is not shown in the bill only in agreement of submission by counsel, submitting the two appeals on one record. However, we look to the record or any part thereof for the issues presented for decision. Cox v. Dunn, 243 Ala. 176, 9 So.2d 1, 3. This cause is now proceeding in the name of the special administrator duly appointed and qualified as provided by Code 1940, T. 61, § 120.

After the filing of the bill of complaint in this case, the respondents Mrs. Agnes B. Little and her son H. Fontaine Little, appellants here, filed numerous demurrers which were overruled by the court. From this ruling they separately prosecute appeals.

The bill, as appellants contend, joins several matters alleged to be connected with and material parts of the administration of the estate of Charles R. Burgess, deceased.

Is the bill multifarious? In the case of Baker v. Mitchell, 109 Ala. 490, 20 So. 40, 41, we find the following pertinent statement of law:

"Such bill may, without being multifarious, in addition to asking the removal of the administration, pray the action of the court in any matters related to the settlement and distribution of the estate, which is a single subject-matter of adjudication.

* * * * * *

"Another principle equally as well understood is, that the administration and settlement of a decedent's estate, is a single and continuous proceeding, and when removed into equity for one purpose, the court must proceed to a final and complete settlement of all matters involved, including those pending and unfinished at the time of its removal from the probate court; for there can be no splitting up of an administration, any more than of any other cause of action. 'It is one proceeding throughout, in a sense, and the court having paramount jurisdiction, must proceed to a final and complete settlement."'

In the case of Littleton v. Littleton, 238 Ala. 40, 188 So. 902, where all the next of kin of decedent were made parties, it is declared:

That where the reclamation of decedent's estate was for administration and distribution, mortgagors to whom decedent had loaned money, alleged to have been procured from him by undue influence, could not object to the bill on the grounds of multifariousness. Of like import is the case of Van Antwerp v. Van Antwerp, 242 Ala. 92, 5 So.2d 73, 77, where the court held: "It is said to be largely a matter of convenience, which influences an exercise of the discretion. 19 Amer.Jur. 196, section 254." The enlarged rule, touching § 6526, Code 1923, is contained in Code 1940, T. 7, Appendix, p. 1055.

We are of opinion that as the bill is filed, by a special administrator, under the statute it offends the rule of multifariousness.

In Dobson v. Neighbors, 228 Ala. 407, 153 So. 861, it was held that a special administrator may sue in a proper case, without making the next of kin parties, for the recovery of the personal assets of decedent's estate. It has long been recognized, when no special equity is averred, that the powers of a special administrator are defined by statute and limited to the personal assets. Espalla v. Gottschalk, 95 Ala. 254, 10 So. 755 (in detinue). In Briarfield Iron Works Co. v. Foster, 54 Ala. 622, the bill by a special administrator, for the receiver of real and personal property of a corporation of which decedent was a stockholder and creditor, was denied. This was in the effort to invoke the exercise of the general powers of a chancery court to protect the properties, real and personal, made the subject of protection pendente lite. Henry v. Ide et al., 209 Ala. 367, 96 So. 698.

Under the general rule, one who resorts to a court of equity must set up an equitable cause of action. Without such averments the statute limiting the powers of a special administrator obtains.

The right of the special administrator...