Parker v. Robertson

• Decision Date: 07 April 1921
• Docket Number: 6 Div. 204
• Citation: 205 Ala. 434,88 So. 418
• Parties: PARKER et al. v. ROBERTSON.
• Court: Alabama Supreme Court

88 So. 418

205 Ala. 434

PARKER et al. v. ROBERTSON.

6 Div. 204

Supreme Court of Alabama

April 7, 1921

Appeal from Circuit Court, Cullman County; O. Kyle, Judge.

Bill by Marion L. Robertson, against Harry Parker and Sarah Blomberg as executors of the last will and testament of George H Parker and as legatees under the will, for the removal of the estate from the probate to the chancery court, sale of the properties for division, filing of proper inventories, and final settlement of the estate. From a decree rendered respondents appeal. Affirmed.

Eyster & Eyster, of Albany, for appellants.

F.E St. John, of Cullman, for appellee.

MILLER J.

George H. Parker died in Cullman county, Ala., on January 22, 1918. He left a last will and testament. It was probated on February 9, 1918. Sarah S.

Blomberg, a devisee and daughter of deceased, was appointed executrix, and Harry Parker, a son and devisee, was appointed executor. Letters testamentary were issued to them.

The first section of the will directs that all of his just debts and funeral expenses be paid. The other sections of the will, material to this cause, are as follows:

"Second. I give, bequeath and devise all and singular my estate, real, personal and mixed wheresoever situate of which I may die seized or possessed or to which I may be entitled at the time of my decease, into four equal parts, and to the following named persons, to wit: One-fourth to my wife Cora A. Parker; one-fourth to the children of my daughter Mary A. Robertson, now deceased, Marion and Ruth, in equal parts, or the survivor of them; one-fourth to my daughter, Sarah S. Parker; and one-fourth to my son, Harry Parker, to hold and to have their respective shares to each of them absolutely.

"Third. A great part of my life's work has been in establishing a banking business, carried on under the name of the Parker Bank & Trust Company, at Cullman, Alabama, and it is my desire that the same be carried on so long as it is best to do so in the judgment of 'my executrix and executor hereinafter named; and for that purpose the stock I own therein shall be kept intact and together by said executrix and executor, so long as in their judgment it is best, but the income therefrom is to be divided annually as above set forth. It is my further desire that my son Harry Parker, shall go into the said business and assume so far as right and proper my place therein. ***

"Fifth. I nominate and appoint and constitute my daughter, Sarah S. Parker, and my son, Harry Parker, the survivor of them, executrix and executor of this my last will and testament; and it is my will and I further direct, that no inventory or appraisement shall be required of them of my estate, and that no bond shall be required of them as such.

"Sixth. I authorize and empower my said executrix and executor, and the survivors or successors of them, to bargain, sell and dispose of all or any of the personal property, real estate or mixed property, or property of any kind of which I shall die seized and possessed at public or private sale, at such time and on such terms and conditions as they or the survivor or successor of them shall deem meet or proper, and to execute, acknowledge and deliver all proper writings, deeds of conveyance and transfers therefor."

Marion L. Robertson files this bill of complaint as amended. He is a grandson of the testator, devisee under the will, and owns one-eighth of all the property, real, personal, and mixed, of which his grandfather died seized and possessed. All of the other legatees and devisees of the estate and the executor and executrix are made parties defendant.

The purposes of this bill of complaint as amended are: (1) To have the administration of the estate transferred from the probate court to the circuit court, equity docket; (2) to require the representatives of the estate to file an inventory of the personal property and choses in action belonging to the decedent; and (3) to have the real estate belonging to the estate sold for division among the devisees, the joint owners and tenants in common on the ground that it cannot be equitably partitioned among them without a sale. It also asks for sale of the personal property for division among the legatees or devisees, and for final settlement of the estate.

Marion L. Robertson, with said bill of complaint as amended, filed in the court a petition in writing, verified by affidavit, stating therein that he is a devisee under the will of George H. Parker, deceased, that a copy of the will was attached to and made part of the bill, and that in his opinion the estate can be better administered in the circuit court, equity side of the docket, than in the probate court of Cullman county, that there has been no final settlement of the estate in the probate court; that no application has been made therein for a final settlement thereof; and that Harry Parker is executor, and Mrs. Sarah S. Blomberg is executrix of the estate.

When this bill of complaint or petition is filed by a devisee or legatee of an estate, verified by affidavit, and the foregoing allegations of facts are made under oath therein, it is the duty of the circuit court to enter a decree, ordering the removal of the administration of the estate from the probate court to the circuit court. This was done in this cause. Acts 1911, p. 574; Acts 1915, p. 738, amending section 3 of the act of 1911.

The law requires every executor, immediately after taking out letters of administration, to make full inventory of the goods, chattels, money, books, papers, and evidences of debt of the decedent. Section 2579, Code 1907. This inventory must not only be in writing, but the law states what it must show, and it must be verified by affidavit of the executor that--

"Such inventory is full and complete as to the goods and chattels, debts, and money of the decedent, which have come to his knowledge or possession." Sections 2580, 2581, Code 1907.

Section 2541 of the Code of 1907 permits a testator to exempt an executor named by him in the will from giving bond. It does not permit him to exempt him from filing an inventory. The will in this cause exempts the executors from giving bond, from filing inventory, and appraisement of the estate.

The complainant made application to the court to require the representatives...