White v. Hill

• Decision Date: 18 April 1912
• Citation: 176 Ala. 480,58 So. 444
• Parties: WHITE v. HILL.
• Court: Alabama Supreme Court

58 So. 444

176 Ala. 480

WHITE v. HILL.

Supreme Court of Alabama

April 18, 1912

Appeal from Chancery Court, Mobile County; Thomas H. Smith Chancellor.

Bill by Henrietta White against Fannie Hill, individually and as administratrix of the estate of William White, deceased. From a decree for defendant, complainant appeals. Reversed and remanded.

Leigh &amp Chamberlain and Ed Walsh, of Mobile, for appellant.

Hamilton & Thornton, of Mobile, for appellee.

McCLELLAN J.

William White died, intestate, on May 24, 1909. On June 16, 1909 Fannie Hill filed her petition in the probate court of Mobile county, alleging that intestate was unmarried and without issue, and that she, as his sister, was his sole next of kin and heir at law, and praying her appointment as administratrix of his estate. On June 22, 1909, letters of administration upon the estate of intestate were issued to Fannie Hill. On June 26, 1909, Emma Green and Callie White filed their petition, praying the revocation of the letters thus issued and the isuance of letters to them or to either of them. In their petition they alleged that the letters to Fannie Hill were improvidently granted upon false statements in this: that intestate was not married; that he left no heirs at law; that Fannie Hill was the sole heir at law. It was further averred that they were children and heirs at law of the intestate, and so, in consequence of a valid common-law marriage effected between decedent and the mother of the petitioners. On June 28, 1909, Henrietta White filed in the probate court a paper as follows:

"In re Estate of William White.

"To the Honorable Price Williams, Jr., Judge of Probate:

"Henrietta B. White, hereby represents to your Honor that she is the common law wife of William White, deceased, having been married to him by agreement at Portland, Dallas County, Alabama, about twenty-four or twenty-five years ago.

"Of this marriage two children were born, Emma and Callie.

"William White died May 24th, 1909, leaving some property, the amount and character of which I am not fully aware.

"I hereby waive my right to administer on his estate, and pray this Honorable Court to take such steps and make such decrees as ought to be made in my behalf.

"Henrietta her X mark B. White."

"Witness: Callie White.

"Filed June 28, 1909."

On July 27, 1909, the probate court entered following order or decree: "State of Alabama, Mobile County. Probate Court of said County. July 27, 1909. Estate of William White, Deceased. Emma Green et al. v. Fannie Hill. This day this cause came on for hearing upon the application of Emma Green and Callie White to cancel the letters of administration heretofore granted in favor of Fannie Hill upon the estate of William White, deceased, issues being joined between the parties, and, after hearing the testimony and the argument of the counsel, the court is of the opinion, and concludes that Emma Green and Callie White are not the lawful heirs and legitimate children of William White, deceased, and are not the heirs at law and next of kin of said decedent, and it is therefore ordered, adjudged, and decreed by the court that the said petition be denied and overruled. It is further ordered and decreed that the appointment of Fannie Hill, as administratrix of William White, deceased, was not improvidently made, and that she is now the duly appointed administratrix of said estate. It is further ordered and decreed that the petitioners pay the costs of this proceeding for which let execution issue."

From this decree an appeal was prosecuted to this court "in the name of Callie White, by her guardian ad litem, alone." The appeal was dismissed for the want of proper parties appellant, it being ruled that the decree was joint, against Callie White and Emma Green, "rendered upon a petition filed by them," and Callie White alone prosecuted it. Walsh v. Hill, 169 Ala. 410, 53 So. 746. On November 22, 1910, Henrietta White filed this bill against the administratrix, Hill, alleging, among other things, that she was the surviving widow of William White, deceased, and praying the removal of the estate of the decedent into, and its final settlement in, the chancery court of Mobile county. To this bill the respondent (the administratrix) interposed pleas, wherein it is set up, in substance, that the before-quoted decree of the probate court bindingly determined upon Henrietta White the fact that she was not the wife, or surviving widow, of William White. By her answer the administratrix denied that Henrietta White was the widow of William White, deceased, and also denied that she was a distributee of his estate. It is too evident to admit of doubt that the construction taken in Walsh v. Hill of the decree of July 27, 1909, was and is correct. The question there raised and decided involved the matter of necessary parties to an appeal, and not the broader inquiry, now pressed, whether Henrietta White is estopped by that decree. It is, of course, readily conceivable that one may be bound by decree on collateral assailment, and yet not a necessary party to an appeal therefrom.

Those concluded by a judgment or decree are thus defined in Powell v. Robinson & Ledyard, 76 Ala. 423, 425: "In order that a judgment may operate a bar, or an estoppel conclusive on the party sought to be bound, he must have been a party to the suit, or in privity with a party, or have possessed the power of making himself virtually a party in the larger legal sense, having a right to control the proceeding, to make defense, to adduce and cross-examine witnesses, and to appeal from the decision, if any appeal lies. Where there is privity of relation, as bailor and bailee, it is sufficient if the party voluntarily appears and makes defense, or has an opportunity to present and litigate his claim. McLelland v. Ridgeway, 12 Ala. 482; * * * Tarleton v. Johnson, 25 Ala. 300 ."

There is no such privity between coheirs or codistributees as will operate to give a judgment or decree against one heir or distributee an effect to estop those heirs or distributees not parties to the proceeding leading to the judgment or decree whereby those not parties to that proceeding are sought to be bound. 2 Black on Judg. § 565; Blackburn v. Crawford, 3 Wall. 175, 190, 18 L.Ed. 186; Kearney v. Denn, 15 Wall. 51, 57, 21 L.Ed. 41. Such persons (coheirs or distributees) do not claim through or under one another, thus omitting an essential factor in order to establish the binding quality of privity. 23 Cyc. pp. 1277, 1278.

The grant of letters testamentary and of administration are in more important aspects proceedings in rem; and in others are proceedings in personam. Nelson v. Boynton, 54 Ala 368, 376. In the particular that the grant of letters creates a repository of the abeyed title of the deceased owner of personal property, it operates upon the status, the thing, and is, hence, a proceeding in rem. Nelson v. Boynton, supra. But in the aspect that the grant of letters of administration determines the right thereto, including priority, or inclusion within...