Moore v. McLure

• Decision Date: 08 February 1900
• Parties: MOORE ET AL. v. MCLURE ET AL.
• Court: Alabama Supreme Court

27 So. 499

124 Ala. 120

MOORE ET AL. v. MCLURE ET AL.

Supreme Court of Alabama

February 8, 1900

Appeal from chancery court, Pike county; W. L. Parks, Chancellor.

Bill by J. A. McLure, administrator, and another, against John E Moore and others. From a judgment in favor of complainants defendants appeal. Affirmed in part.

The bill in this case was filed by J. A. McLure, as administrator of the estate of Margaret Moore, and Flora McLure, the wife of James A. Moore, who was the daughter of Margaret Moore deceased, and James C. Moore. The defendants to the bill are the heirs at law of James C. Moore, deceased. The bill averred the following facts: James C. Moore died intestate on February 8, 1892, leaving surviving him Margaret Moore, his widow, and the defendants and Flora McLure, his children. All of said children at the time of the death of James C. Moore were over 21 years of age, except Flora McLure, who was at that time a minor, and resided with her father until the time of his death, and then with his widow after his death. On March 6, 1892, the dwelling house of James C. Moore deceased, in which he resided up to the time of his death was destroyed by fire, as was also his household and kitchen furniture. The dwelling house was insured for $1,000, and the household and kitchen furniture was also insured for $1,000 $500 of which was payable to the widow, Margaret Moore, and the other $500 was payable to James C. Moore, deceased. Said property was destroyed by fire prior to the granting of letters of administration on the estate of James C. Moore, deceased. On April 7, 1892, John E. Moore was appointed administrator of the estate of James C. Moore, deceased, and entered upon the discharge of his duties as such administrator, and on December 21, 1893, made his final settlement of said estate, the estate being solvent. On April 7, 1892, the date of the appointment of the administrator, appraisers were also appointed by the probate court of Pike county to appraise the property of James C. Moore, deceased, and to set apart to his widow and minor child the exemptions secured to them by law. April 27, 1892, said appraisers made their report, setting apart of said widow and minor child, Flora McLure (then Flora Moore), as exempt to them from administration, in lieu of the specific property described and exempt under section 2545 of the Code of 1886, the $500 insurance policy on the household and kitchen furniture; and said appraisers also set apart as exempt to said widow and minor child, under section 2546 of the Code of 1886, the $1,000 insurance policy on the dwelling house, which was the home of said James C. Moore, deceased; and they also set apart to said widow and minor child, under section 2543 of the Code of 1886, the vacant lot on which the dwelling house of James C. Moore stood prior to its destruction by fire. John E. Moore, as administrator of the estate of James C. Moore, deceased, collected the money on the insurance policies above referred to, and which was set apart to the widow and minor child of James C. Moore, deceased, as their exemptions as aforesaid, and used said money in building a house on said lot. It was then averred that the title to said lot was and is in the heirs of said James C. Moore, deceased, and all of said heirs own an undivided, equal, and joint interest therein. The bill then continues with the following averments: "That the said widow and minor child did not know at the time said building was being built and erected that said insurance policies had been set apart to them as exempt from administration and the payment of debts of the estate of James C. Moore, deceased; that the whole of the said building and improvements on said lot above described were purchased, paid for, and built with the money of the said widow and minor child, the proceeds of the policies of insurance set apart to them as above described, and that said buildings and improvements still remain on said lot; that the said John E. Moore claimed and asserted at the time said house was being built that he was having said house built for the use and benefit of said widow and minor child. And orators aver that they have a lien on said house and lot for the amount of their money that went into the same. And orators aver that, notwithstanding this, the heirs of the said James C. Moore, deceased, are now seeking by a proceeding in the probate court of Pike county, Alabama, to have said house and lot sold for division among the joint owners thereof, and are claiming and asserting that the whole of said property, including the house and improvements, belongs to the heirs of said James C. Moore, deceased, jointly and equally, as tenants in common. And complainants aver that John E. Moore is insolvent." It is further averrred in the bill that Margaret Moore, the widow of James C. Moore, deceased, died intestate on September 17, 1898, and left as her sole heir and distributee FLora McLure, who was the only child, and that on January 24, 1899, James A. McLure was duly appointed administrator of the estate of Margaret Moore, deceased. The prayer of the bill was for a reference to the register for the purpose of ascertaining how much of complainants' money was used in erecting the building and improvements on the lot described in said bill, "and upon the final hearing of this cause may it please your honor to order, adjudge, and decree that your orators have a lien on the house and lot in this bill described, for the amount of their money which was used in the erection and construction of the building and improvements thereon, and that your honor will order, adjudge, and decree that said house and lot be sold by the register, and that out of the proceeds of such sale he be ordered to pay to complainants such amount as shall be found to be due them by this court." There was also a prayer for general relief. The defendants separately and severally demurred to the bill upon many grounds, presenting two conditions, which are fully shown in the opinion. On the final submission of the cause the chancellor rendered a decree overruling the demurrers as interposed to the...