Priest v. Chenault, 8 Div. 20.

• Citation: 239 Ala. 209,194 So. 651
• Decision Date: 14 March 1940
• Docket Number: 8 Div. 20.
• Parties: PRIEST ET AL. v. CHENAULT.
• Court: Supreme Court of Alabama

194 So. 651

239 Ala. 209

PRIEST ET AL. v. CHENAULT.

8 Div. 20.

Supreme Court of Alabama

March 14, 1940

Appeal from Circuit Court, Morgan County; W. W. Callahan, Judge.

Bill by W. M. Chenault, as administrator with the will annexed of the estate of Nellie E. Priest, deceased, against H. M. Priest and others, for removal of administration of estate from probate court to circuit court in equity, for construction of the will, for accounting, etc. From a decree overruling a demurrer to the bill and motion to abate, respondents appeal.

Affirmed.

Ben L Britnell and Wm. Bryan McAfee, both of Decatur, for appellants.

E. W Godbey, of Decatur, for appellee.

THOMAS Justice.

The appeal is from a decree overruling the demurrers to the bill as amended and the denial of the motion to abate the instant suit.

The right of removal of an administration of an estate from the probate court to a court of equity having venue of such matters is declared by statute. Michie's Code, §§ 6478 8102; Pierce v. Barbaree, Adm'x, 238 Ala. 676 193 So. 115; Dent v. Foy et al., 204 Ala. 404, 85 So. 709; Ashurst v. Ashurst, 175 Ala. 667, 57 So. 442.

This bill is filed by the personal representative of decedent's estate for discovery against the husband, a large claimant, for construction of the will, it being of doubtful construction in part (Upshaw v. Eubank, 227 Ala. 653, 151 So. 837); for accounting on discovery as to real and personal property; and for direction of the court on necessary and controverted questions and objects sought to be disposed of by the will as to improvements to be made to the property and for investment of moneys accruing therefrom and for the enforcement of liens held by intestate.

For the foregoing reasons, demurrer was overruled to the bill as amended. The right of removal is conferred by statute upon complainant as the personal representative of decedent for construction and direction in the administration of the trust estate.

The part of the decree touching the motion to stay the suit or abate part thereof is as follows:

"This cause coming on to be heard on the motion of the complainant for a hearing and decision on the defendants' demurrers to the bill as amended, and upon defendants' motion to abate * * *

"* * * proceedings and answer to that phase of this bill by the said H. M. Priest pertaining to the Lots and Funeral Home which he claims to be the property of the said H. M. Priest, and to the L. W. Patterson mortgage indebtedness claimed to be the property of the said H. M. Priest and that the same be determined in the original suit which was filed prior to the inception of this proceedings, * * * etc., and, after hearing arguments of respective counsel, it is considered by the Court that the said demurrers of the defendants to the bill as amended be and the same hereby are overruled; and it is further considered that the motion of the defendants aforesaid be and the same is overruled."

The action of the trial court is without...