Stein v. Gordon

• Citation: 10 So. 631
• Parties: STEIN ET AL. v. GORDON ET AL.
• Decision Date: 25 February 1892
• Court: Supreme Court of Alabama

10 So. 631

STEIN ET AL. v. GORDON ET AL.

Supreme Court of Alabama

February 25, 1892

Appeal from chancery court, Mobile county; THOMAS W. COLEMAN Chancellor.

Bill by Emma Gordon and others against Louis Stein and others to have the administration of an estate, of which the said Louis Stein was executor, removed into a court of equity. From an order overruling certain pleas to the bill, defendants appeal. Affirmed.

L H. Faith, for appellants.

Fredk G. Bromberg, for appellees.

WALKER J.

The bill in this case was filed by devisees under the will of Albert Stein, deceased, and its purpose was to have the court of chancery take jurisdiction of the administration of the estate and of the settlement thereof. The bill shows that Albert Stein died testate in July, 1874; that the defendant Louis Stein qualified as executor under his will in August 1874, and has since that time been in possession and control of the property of the estate, and has made no accounting of his trust as executor since November, 1887, more than two years before the bill was filed. It is alleged that the estate is now ready for distribution. When the case was in this court at the last term, the will of the decedent was construed. Stein v. Gordon, (Ala.) 9 South. Rep. 741. The matter now presented for review is the ruling of the chancery court on three pleas interposed by the defendants.

The substance of the matter set up by the first plea is the pendency of a suit brought by the defendant Louis Stein, as executor, in the circuit court of the United States for the southern district of Alabama, to prevent an interference with or infringement of alleged rights and franchises of the Mobile city water-works, an interest in which is alleged to be the most valuable portion of the estate of his testator. The plea charges that a sale of the Mobile city water-works property pending the suit mentioned would result in a sacrifice of the property, and would not be to the interest of the owners thereof The pendency of that suit is pleaded as a good and sufficient reason why the water-works property should not be sold before the termination of that suit, and why the estate of Albert Stein, deceased, is not now in a condition for a final settlement and distribution thereof. This plea does not disclose a valid objection to the maintenance of the present suit. The statutes which have conferred upon courts of probate large powers in reference to the estates of decedents have not divested the chancery court of the original equitable jurisdiction to enforce the trusts of an administration. Before the jurisdiction of the court of probate has been put in exercise for the purpose of making a final settlement, a devisee or an heir, a legatee or a distributee, may as a matter of right, and without assigning any special cause for equitable interposition, have the administration removed into a court of equity for a settlement. The court of equity, proceeding according to its own practice, 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. Bragg v. Beers, 71 Ala. 151; Teague v. Corbitt, 57 Ala. 529; McNeill v. McNeill, 36 Ala. 109; 3 Brick. Ala. Dig. p. 334, §§ 61-63. It is the duty of an executor to make annual settlements of his administration. He may, when necessary for the interests of the estate, he required to make a settlement at any time; and a final settlement may be made at any time after 18 months from the grant of letters, if the debts are all paid, and the condition of the estate, in other respects, will admit of it. Code, §§ 2133, 2134. When the administration is removed into the chancery court, that court may require such settlement, whether partial or final, as the...