Roy v. Roy

• Decision Date: 04 February 1909
• Citation: Roy v. Roy, 159 Ala. 555, 48 So. 793 (Ala. 1909)
• Parties: ROY v. ROY ET AL.
• Court: Alabama Supreme Court

48 So. 793

159 Ala. 555

ROY v. ROY ET AL.

Supreme Court of Alabama

February 4, 1909

Appeal from Chancery Court, Jefferson County; A. H. Benners Chancellor.

Bill by Louis A. Roy against Cecelia N. Roy and others. From the decree, complainant appeals. Reversed and remanded.

McClellan J., dissenting.

Sterling A. Wood and George L. Smith, for appellant.

Henry Upsom Sims, for appellees.

McCLELLAN J.

The administration of the estate of James A. Roy, deceased, was properly removed from the probate into the chancery court of Jefferson county upon appropriate bill filed by Louis A. Roy who was an heir at law of said intestate. Consequent upon this bill the usual processes and practices of the chancery court were employed to bring in parties respondent, resident and nonresident, adult and infant, and a guardian ad litem consenting in writing to so serve, constituted to represent the infant parties in interest in the cause. The jurisdiction, therefore, attached for all purposes of administration, unless infirmities to be considered intervened to thwart the effective exercise, in respect of the sale of the real estate for division, of the powers of the court.

Pending the administration, after removal, the administratrix, Cecelia N. Roy, a party respondent, filed her petition therein, praying a private sale of the real estate belonging to the estate for the purpose of division among those entitled thereto, upon the ground that the realty could not be equitably divided. The petition was favorably considered, and a decree entered ordering the private sale as prayed. In the course of the procedure, from the filing of the petition to the decree of (private) sale, the following steps, required in like proceedings in the probate court, conveniently thus enumerated by one of the solicitors in the cause, were not observed: (1) The day for the hearing was not 40 days after filing the petition. (2) There was no publication for nonresidents. (3) There was no appointment of guardian ad litem for that special proceeding. (4) There was no express denial of the averments of the petition. (5) Testimony was not taken by deposition. (6) The sale was authorized to be privately made, though subject to confirmation by the court.

The errors assigned propound these questions for decision: First. Is the chancery court, in administering an estate of which it has jurisdiction, bound, in order to effect a valid sale, for division, of real estate thereof, to observe the statutory requirements provided for such sales in the probate court? Second. May the chancery court validly order a private sale of real estate, subject to confirmation thereby? Third. Is the decree erroneous in requiring, as a condition precedent to the execution thereof, a bond as provided by Code 1896, § 759?

The majority of the court hold that, as the only authority for any court ordering the sale of a decedent's lands, for distribution, is found in section 157 et seq., of the Code of 1896, it necessarily follows that the requirements of those sections must be complied with, in the chancery as well as in the probate court. The day for the hearing should have been appointed, as required by statute. Publication should have been made as to nonresidents. There should have been a guardian ad litem for this proceeding, and the sale should have been in accordance with the statute. The importance of the questions presented afford my reason for a statement of my views in dissent from the majority.

The first inquiry is more a matter of interpretation of our previous decisions bearing thereupon then the ascertainment and announcement of substantive law in the premises. For this reason, as well as because best promotive of the effort to declare a sound conclusion, I quote several of these adjudications, from the pens of our learned elders:

Bragg v. Beers, 71 Ala. 151: "It is true that a court of equity, in the absence of statute conferring the jurisdiction, will not decree a sale of lands of an adult, to make partition, without his consent. * * * Before the jurisdiction of the court of probate to settle an administration, and to make division and distribution, has been put in exercise, without the assignment of any special cause, devisees or heirs, legatees or distributees, may resort to a court of equity for a settlement of the administration. * * * The court (equity), proceeding according to its own practices, is governed by and applies the law controlling the settlement of administrations, the distribution of assets, or the partition or division of property, which prevails in the court of probate. The parties lose neither right nor remedy by resorting to a court of equity, instead of invoking the jurisdiction of the probate court. If, to effect a final settlement, distribution, and partition, a sale of lands is necessary, the court will order the sale in all cases in which, under like circumstances, the court of probate would have had jurisdiction to order it."

Sharp v. Sharp, 76 Ala. 312: "When a court of equity takes jurisdiction of the administration of an estate of a decedent, the court takes the estate in its condition at the time of taking jurisdiction, and is governed by the laws regulating and controlling the sales of property, the payment of debts, and settlement of administrations which are applicable to the administration of estates in the probate court. Following its own practice, the court will decree a sale of lands, when necessary, and when, in similar cases, a court of probate would have had jurisdiction to order a sale. * * * The probate court has jurisdiction to order a sale of the lands of an intestate, in only two cases--for the payment of debts and for distribution. * * *"

Ex parte Lunsford, 117 Ala. 224, 23 So. 529: "And when the court (equity) takes jurisdiction, following its own rules of practice, it is often said that it will apply the law relating to administrations as it prevails in the court of probate. An examination of the cases in which this expression has been employed will show that by it no more was intended than that the court takes jurisdiction of the administration in the plight and condition in which it was in the court of probate, and will exercise whatever of statutory jurisdiction or authority that court could have exercised in drawing the administration to a final settlement." After referring to the two cases above quoted, with others, the opinion denominates the statutory jurisdiction of the probate court in the premises, and its exercise in the equity courts, as incidental to the general jurisdiction of the equity courts over the trust of administrations. In other...