Tillery v. Tillery

• Decision Date: 23 April 1908
• Citation: 46 So. 582,155 Ala. 495
• Parties: TILLERY ET AL. v. TILLERY.
• Court: Alabama Supreme Court

46 So. 582

155 Ala. 495

TILLERY ET AL. v. TILLERY.

Supreme Court of Alabama

April 23, 1908

Appeal from Chancery Court, Lee County; W. W. Whiteside, Chancellor.

Action by Effie B. Tillery against Thomas J. Tillery, as administrator of the estate of John C. Tillery, deceased, and another. From a decree overruling a demurrer to the bill defendants appeal. Affirmed in part, and reversed and rendered in part.

Samford & Duke, for appellants.

R. B Barnes, for appellee.

SIMPSON J.

The bill in this case was filed by the appellee, as the sole heir of John C. Tillery, against the appellants, Thomas J Tillery, as administrator of said John C. Tillery, and J. F Ford, who is the surviving partner of a firm composed of said decedent and said Ford. The bill seeks to remove the estate of said John C. Tillery from the probate into the chancery court, and also to require said Ford, as surviving partner, to make a complete return and settlement of said partnership affairs. Separate demurrers to the bill were filed by each of said defendants, which were overruled by the chancellor, and separate assignments of error are here made.

The ground of demurrer insisted on by both appellants, that the bill fails to show that complainant is the legitimate child of the decedent, is without merit. The bill alleges that "oratrix is the sole heir of the said John C. Tillery. being the daughter and only child of said John Tillery, deceased." In addition to the fact that this is a distinct allegation of heirship, the second clause being merely explanatory of the degree of relationship, the word "child," in the absence of any facts or circumstances indicating a different interpretation, carries with it the meaning of legitimate offspring. Black's Law Dict. p. 200; 7 Cyc. 124, 125; 2 Words & Phrases, pp. 1123, 1124; Hill v. Cook, 6 L. R. Eng. & I. App. 265; Cromer v. Pinckney, 3 Barb. Ch. (N. Y.) 466; Gardner v. Heyer et al., 2 Paige (N. Y.) 11; Overseers of Poor v. Overseers of Poor, 176 Pa. 116, 34 A. 351; Crook, Judge, etc., v. Webb, 125 Ala. 457, 463, 464, 28 So. 384.

It is next insisted by the appellant Ford that he is improperly joined as a party defendant. The partnership assets, in this case, consisted entirely of personal property, and upon the death of one partner said assets vested in the surviving partner for the purpose of winding up the business, subject to the right of the legal representative of his deceased partner to call him to a settlement. Said surviving partner had no interest whatever in the administration of the estate of his deceased partner, and the administration of said estate had no connection with the settlement of the affairs of said partnership, except that the personal representative had the same right to call said surviving partner to a settlement as he had against any other creditor of the estate. It cannot be said that the separate interests of the two defendants "are all connected with and come out of the single object of the suit--not dividing the remedy into two suits."...