Rikard v. O'Reilly

• Decision Date: 11 June 1936
• Docket Number: 726-A,8 Div. 726,726-B
• Citation: 232 Ala. 667,169 So. 320
• Parties: RIKARD v. O'REILLY. O'REILLY v. FIDELITY & CASUALTY CO. OF NEW YORK. SAME v. MONK.
• Court: Alabama Supreme Court

169 So. 320

232 Ala. 667

RIKARD v. O'REILLY.

O'REILLY v. FIDELITY & CASUALTY CO. OF NEW YORK.

SAME v. MONK.

8 Div. 726, 726-A, 726-B

Supreme Court of Alabama

June 11, 1936

Rehearing Denied July 16, 1936

Appeal from Circuit Court, Colbert County; C.P. Almon, Judge.

Bill in equity by Mrs. Willie B. O'Reilly against F.H. Rikard the Fidelity & Casualty Company of New York, F.S. Monk, and others, with cross-bills by the named respondents. From a decree sustaining a demurrer to his cross-bill, respondent Rikard appeals (revived on his death in name of Mattie Rikard, as administratrix); from decrees overruling demurrers to cross-bills of respondents Fidelity & Casualty Company and F.S. Monk, complainant appeals.

Reversed and rendered on appeal of Rikard; affirmed on both appeals of O'Reilly.

J.E Delony, Jr., and Kirk & Rather, all of Tuscumbia, for appellant Rikard.

R.L Polk, of Sheffield, and E.W. Godbey, of Decatur, for appellee and cross-appellant O'Reilly.

KNIGHT Justice.

We have before us three separate appeals, prosecuted by the respective appellants from decrees of the circuit court of Colbert county on demurrers to cross-bills, and by agreement of the parties these appeals have been brought here by a single transcript. Each appellant has given a separate appeal bond, and each appeal relates to the administration of the estate of J.E. O'Reilly.

After the appeal was taken, F.H. Rikard, one of the appellants, died, and the appeal has been revived in the name of his personal representative, Mrs. Mattie Rikard.

It appears from the record that Mrs. Willie B. O'Reilly, in her right as the widow of the said J.E. O'Reilly, deceased, and also as the successor to the right, title, and interest of J.E. O'Reilly, Jr., the sole heir at law of said decedent, filed in the circuit court of Colbert county her bill of complaint against the said F.H. Rikard, the said Fidelity & Casualty Company of New York, surety on the bond of the said F.H. Rikard, as administrator of the estate of said J.E. O'Reilly, deceased, and against F.S. Monk and others, seeking a proper accounting and settlement of said estate.

In her bill, she prays that the administration of said estate be removed from the probate court to the circuit court, in equity, of Colbert county. Complainant charges many wrongs and misdoings to the administrator, the said F.H. Rikard. We may assume that the bill contains equity, in at least some of its aspects.

To this bill the said F.H. Rikard, the Fidelity & Casualty Company of New York, and the said F.S. Monk filed separate answers, and each made the same a cross-bill against the complainant, also sought to bring in, and to make, J.E. O'Reilly, Jr., who was not a party to the original bill, a party respondent to the cross-bills. However, at a later point in the proceedings, the said J.E. O'Reilly, Jr., was stricken as one of the parties respondent to the cross-bill, so that, at the time the decree was rendered, Mrs. O'Reilly was the sole respondent in the cross-bills filed by Rikard and Monk, but in the cross-bill filed by the Fidelity & Casualty Company of New York, Mrs. Octavia A. Hughston is joined with Mrs. O'Reilly as a party defendant.

It appears from the cross-bill filed by the said F.H. Rikard, aided by the admitted averments of the original bill, that J.E. O'Reilly, the husband of the complainant in the original bill, died in Colbert county, possessed of a rather large estate, consisting almost wholly of lands situated in said county, and in the state of Mississippi; that he was survived by the original complainant, his widow, and one son, J.E. O'Reilly, Jr., who was decedent's sole heir at law, and who was over twenty-one years of age at the time of his father's death; that on the day following the death of Mr. O'Reilly, the widow and son appealed to the cross-complainant, F.H. Rikard, to take charge of, manage, and control the properties of the estate; that the cross-complainant accepted employment from said parties, and agreed with them to take charge of the estate, and pay all the debts; and that it was further agreed between the three parties that enough of said property should be sold to pay off the indebtedness of the estate, and when that was accomplished, the remaining property was then to be turned over to the beneficial owners, the complainant and son.

It appears that the decedent owed considerable debts at the time of his death, and included among said debts was a debt due to the said F.S. Monk, in the sum of about $656.10, which was evidenced by note of decedent; that said Monk thereafter acquired by purchase and transfer two other claims against said decedent's estate, viz., the claim of H.D. Davis and Minnie J. Gantt, which were secured by mortgages on certain real property, some of which was owned by J.E. O'Reilly, Sr., and some by J.E. O'Reilly, Jr.

None of the claims held by said Monk were filed as claims against said estate in accordance with the requirements of section 5818 of the Code, as amended by the Act of the Legislature of 1931, approved August 1, 1931. Gen.Acts 1931, p. 837.

In his cross-bill the said cross-complainant Rikard avers in substance that it was not in contemplation of the parties that there should be any administration of said estate under the statute, but, on the contrary, that he should by, and with the advice and consent of the widow and only heir, make sale of sufficient amount of the real estate and other assets to pay the debts of the estate; that it developed that there were some moneys due the decedent by one or more of the banks, and it became necessary to take out letters of administration in order to collect the amount due from the banks to said estate.

It is further averred that the said Willie B. O'Reilly and the said J.E. O'Reilly, Jr., advised the said cross-complainant that they wanted the debts due to H.D. Davis, Minnie J. Gantt, and F.S. Monk paid (all of which claims were then owned by said Monk); that they agreed upon the land to be sold to pay said debts, and had the cross-complainant to procure an order for the sale of the lands, so selected for sale, in the probate court of Colbert county, and the same were accordingly sold, and said Monk pursuant to agreement with the complainant, son, and Rikard, purchased said lands at the sale, paying the amount of his debts against the estate therefor, and the evidences of the indebtedness were surrendered up to said cross-complainant.

The cross-bill avers in substance that in making each sale of real estate he consulted with and received the consent and approval of Mrs. O'Reilly and of her son.

It further appears from said cross-bill that all the debts of said estate have been paid by said Rikard, except about $3,000 due Octavia A. Hughston, and which is secured by mortgage; "and a small balance of about $203.00 owing to one F.M. Tapp for services rendered by him for and on account of the O'Reilly estate," and in this connection it is averred that the services rendered said estate by F.M. Tapp were by and with the consent of complainant and J.E. Reilly, Jr.

Along with and as a part of his cross-bill, the said cross-complainant Rikard submits a statement of all moneys and properties received by him and a statement of his...