McElhaney v. Singleton

• Decision Date: 14 January 1960
• Docket Number: 7 Div. 306
• Citation: 117 So.2d 375,270 Ala. 162
• Parties: Hattie McELHANEY et al. v. Haddie SINGLETON et al.
• Court: Alabama Supreme Court

Page 375

117 So.2d 375

270 Ala. 162

Hattie McELHANEY et al. v. Haddie SINGLETON et al.

7 Div. 306.

Supreme Court of Alabama.

Jan. 14, 1960.

Scott, Dawson & Scott, Fort Payne, for appellants.

W. M. Beck, Fort Payne, for appellees.

COLEMAN, Justice.

Hugh Wesley Coley died intestate November 8, 1952, leaving a widow, four daughters, and a minor grandson as his next of kin. The widow died prior to the filing of a bill of complaint in the circuit court, in equity, by appellants in this suit on June 14, 1954.

The complainants in the bill are two of the daughters, Mrs. McElhaney and Mrs. Bradley, and the minor grandson who sues by Mrs. McElhaney as his next friend. The respondents are the other two daughters, Mrs. Leslie and Mrs. Haddie Singleton, sometimes referred to in the testimony as Hade.

Mrs. Singleton is administratrix of the estate of her father and is a party respondent in that capacity also. She asserts a claim against the estate for services rendered and expenditures made by her for her father during his lifetime. The assertion of that claim gave rise to this suit.

Hugh Coley's estate consisted chiefly of his house and one acre lot in the city of Fort Payne. He left little personal property.

The bill of complaint prays for a sale of the real estate by the register for division among the five heirs. From a decree allowing Mrs. Singleton's claim in the amount of $1,000 and ordering a sale of the real estate by the administratrix, the complainants have taken this appeal.

The bill of complaint avers that Mrs. Singleton 'procured the appointment of herself as' administratrix February 3, 1953; that she filed 'with the Probate Court' a claim or a purported claim against the estate for $4,000; that an order was entered by the probate court allowing the $4,000 claim on September 26, 1953; and that the probate court had no jurisdiction to make such order. The bill of complaint was filed June 14, 1954. It prayed for removal of the administration to the circuit court, in equity, and an order of removal was made in accordance with the prayer.

The respondents filed a plea in abatement alleging that on May 13, 1954, the administratrix had filed in the probate court of DeKalb County a petition to sell the homestead for payment of the debts of the estate, that the estate owed debts in large amounts, and that the personal property was not sufficient to pay the debts. The plea prays that the suit be 'abated and dismissed out of Court,' and that the administratrix be permitted to proceed with her petition already on file to sell the lands for payment of debts. After a hearing at which testimony was taken, the circuit court, in equity, on December 20, 1954, denied the plea in abatement.

On January 14, 1955, respondents filed a verified motion or petition alleging, among other things, that the administratrix had filed in the probate court on May 13, 1954, a petition to sell the lands in suit for payment of debts; that the estate was indebted; that the personalty was insufficient to pay the debts; that the probate court had set June 15, 1954, to hear the application to sell lands filed in that court; and that said proceedings were pending in the probate court when appellants filed their bill of complaint on June 14, 1954. In the petition, respondents prayed that the circuit court would make an order authorizing the administratrix to proceed in the circuit court with her petition filed in the probate court for sale for payment of debts and that the petition of complainants for sale for division be held in abeyance.

Complainants filed a motion to strike respondents' petition on the grounds that: (1) the matters set out therein refer not to this proceeding but to another cause of action, (2) the pleading of respondents has no place in this proceeding, and (3) said petition seeks a useless order and prays for permission to proceed in another proceeding when it does not appear there is anything to prevent respondents from proceeding in the cause mentioned in said petition.

On January 22, 1955, the court entered an 'Order for Procedure under Pending Bills or Petitions,' which, inter alia, recited: 'Upon the entering of the order of the removal of the estate to this Court, the administration of the Estate was removed here for all purposes, and this Court does not see that it is material as to which party first gets testimony before the Court. The Court will consider all of the testimony regardless of the order in which it is offered. Some testimony has already been taken, and there is no necessity of repetition of testimony that has been taken.' The order denied complainants' motion to strike.

On April 20, 1955, respondents filed an answer to the bill of complaint. The answer denied the allegation that the deceased father owed no debts and asserted that he did owe Mrs. Singleton a large sum of money for which she had filed a claim which had been allowed by the probate court. The answer admitted that the lands could not be equitably divided and that sale was necessary, but denied 'the allegations with reference to fraud.' The answer prayed the court to permit the administratrix to proceed with the sale for payment of debts and for dismissal of the bill of complaint.

Testimony was taken before the register. We review the decree appealed from without presumption of correctness which attends a decree rendered on testimony heard ore tenus by the chancellor. Pope v. Pope, 268 Ala. 513, 109 So.2d 521.

The decree from which this appeal was taken declared null and void the judgment of the probate court allowing Mrs. Singleton's claim in the amount of $4,000; allowed her claim in the amount of $1,000; and authorized the administratrix to proceed with mentioned in the decree were reserved for mentioned in the decree were reserved for decision until the coming in of the report of the sale.

Absence of Cross-bill.

Appellants argue that the chancellor erred in allowing Mrs. Singleton's claim for $1,000 and authorizing her, as administratrix, to sell the property because, say appellants, that is affirmative relief and affirmative relief cannot be awarded to respondents without a cross-bill.

Appellants cite Hawkins v. Snellings, 252 Ala. 238, 40 So.2d 704, where it was held to be error to order foreclosure of a mortgage owned by respondent in a suit to enjoin foreclosure, where respondent did not file a cross-bill, unless complainant submits himself to jurisdiction of the court so that the court, without more, might compel him to do equity; Johnson v. Green, 259 Ala. 511, 66 So.2d 768, where it was held that in suit for reformation of a deed, a cross-bill was not subject to demurrer in that aspect which sought to recover rent because such relief was affirmative relief to which respondents would not be entitled under their answer; O'Kelley v. Clark, 184 Ala. 391, 63 So. 948, which recognizes, as an exception to the general rule, the right of respondent in suit for accounting to have a decree against complainant without filing a cross-bill; Marshall v. Rogers, 230 Ala. 305, 160 So. 865, where respondents were held not entitled, without a cross-bill, to have allotment in kind of a moiety of the lands in suit for sale for division; and Crawford v. Chattanooga Savings Bank, 203 Ala. 133, 82 So. 163, where this court, in a suit commenced by bill to reform and foreclose a mortgage, held that the cross-bill seeking cancellation of the mortgage was not demurrable for want of equity, because the relief sought therein could be had only by means of a cross-bill.

The cases cited by appellants support the general rule that affirmative relief can be had only on a cross-bill. These cases, however, do not have to do with administration of estates in equity. In the instant case, the chancellor seems to have rested the granting of relief to respondents on Ex parte Stephens, 233 Ala. 167, 170 So. 771. We think he was correct in doing so.

In the Stephens case, supra, the opinion shows that decedent died intestate February 2, 1936, possessed of land; she owed debts and the personalty was insufficient to pay same; and on July 25, 1936, one heir filed bill in equity to sell the land for division. After the filing of the bill, another heir applied for and received letters of administration on August 10, 1936. On August 12, 1936, the administratrix filed in the probate court her petition to sell the land for payment of debrs and the probate court set a day for hearing same. On September 1, 1936, the complainant in the bill for sale for division filed his petition to remove the administration to the circuit court and the circuit judge made an order so removing the same. After removal, the administratrix filed her petition in the circuit court praying to be allowed to proceed with her petition filed in the probate court for sale for payment of debts. This last petition was denied by the judge of the circuit court and the administratrix applied to the Supreme Court for mandamus to require the circuit judge to vacate his order denying to administratrix the right to prosecute to conclusion her petition for sale for payment of debts.

This court held that the administratrix was entitled to the relief prayed for and said:

'When the circuit court, in the exercise of its unquestioned jurisdiction, reached out and brought before it for administration the estate of Martha V. Stephens, then being administered in a court of competent and concurrent jurisdiction, it took over that estate, and the proceedings had therein, just where they stood when the same were taken over. The order of removal did not serve to set aside or to annul what had been properly done theretofore in the probate court, but rather to 'pick up the proceedings' where the probate court had left off, assuming, of course, that the proceedings theretofore had in the probate court were within the jurisdiction of that court and regular.

'When the order of removal was made, and the proceedings...