A petition was filed in the probate court of Fayette county for the probate of the will of William T. Naugher, deceased, which was admitted. Thereafter this complainant, Dora Hinson, procured the removal of administration of that estate to the circuit court in equity.
The bill by said Hinson thereafter filed in said court of equity was original in form and prayed: (1) That the court take jurisdiction of the "cause and the administration of the trust herein mentioned"; (2) that "C. E. Naugher, as executrix and trustee of the said last will and testament of said William T. Naugher, deceased, be required to enter into bond with good and sufficient surety," etc.; that she "be required to make and file in this court a full, true, and complete inventory, * * * her accounts and vouchers, and make settlement at * * * certain and specified intervals of time"; (3) that the provisions of the will of decedent be construed as to "the rights, powers, duties, and limitations of said respondent C. E. Naugher, as executrix and trustee, under items 3, 4, 5, and 6 of said will," and the "scope of the powers and discretion invested in said executrix and trustee under the terms of said will" be defined; (4) that a reasonable attorney's fee be allowed; and (5) for general relief.
The order of removal of the administration from the probate to the equity court was accomplished at the instance of said Hinson, daughter of William T. Naugher, deceased, and one of the devisees and legatees under the terms of said last will and testament by means of her sworn petition containing the averments necessary under the statute. Thereafter the administration of said estate and trust properties was a pending cause in the circuit court in equity. Gen. Acts 1915, p. 738; Acts 1911, pp. 574, 575; Parker v. Robertson, 205 Ala. 434,88 So. 418; Dent v. Foy, 204 Ala. 404, 85 So. 709; Dooley v. Dooley, 205 Ala. 281, 87 So. 545; Crawford v. Carlisle, 206 Ala. 379, 89 So. 565, 568(1); McKeithen v. Rich, 204 Ala. 588, 86 So. 377; Dent v. Foy, 206 Ala. 454,90 So. 317.
Recent decisions of this court are to the effect that the administration and settlement of a decedent's estate in equity is a single and continuous proceeding; and when the administration of an estate is once removed from the probate court into a court of equity, its jurisdiction becomes exclusive and efficient, and the court must operate to a final settlement governed by its own procedure. McKeithen v. Rich, supra; Dent v. Foy, 206 Ala. 454, 90 So. 317.
Complainant's filing of her bill in the circuit court in equity, to which the administration of the estate of William T. Naugher, deceased, had been removed on her "sworn petition," was not an interruption of the due course of administration of the estate, but was an authorized incident of a proper procedure in a court of equity consistent with an orderly administration of the estate and its trust funds by the executrix and trustee under the last will of said decedent.
In Rice v. Davidson, 206 Ala. 226, 89 So. 600, a bill was filed in equity to restrain a trespass on land that was the subject of a pending bill in the same court to quiet title. Held:
"The two pending 'bills' between the same parties, involving the subject-matter or title to the same lands, became one and the same, cause."
In Coley v. English, 204 Ala. 691, 87 So. 81, a bill was filed to enjoin the cutting and removing or depredations upon any of the timber situated on the land described in the deed of the Englishes to King, pending the determination of a bill by complainant for the specific performance by the Englishes of their contract to convey said land to complainant, which was then pending. Held that, on the averments of the bill for injunction, no real question was presented with respect to any right, interest, or title in complainant to the timber passing by the conveyance to King in 1905. And for such reason the bill was held to be without equity. These last-cited authorities are different from the case made by the instant bill, in that they were respectively for the sole purpose of preserving the subject or status quo of pending litigation. However, it remains a fact that in both cases bills original in form were considered by the court as sufficient to present the necessity vel non of the exercise of the restraining power of the court to preserve the subject-matter of the other suit, and in the one case held sufficient and in the other as insufficient in fact.
In the instant case the removal of the administration of the Naugher estate from the probate to the circuit court in equity had been effectuated under the statute by a *Page 594 sworn petition of Dora Hinson, who thereafter (as complainant) exhibited her bill in said court for construction of the will, filing inventories, etc., and other acts deemed necessary and proper to the preservation of the estate or trust properties in the due administration thereof, in accordance with the terms of the testator's will as affecting the properties and objects of his bounty and powers of the trustee and executor. It must be admitted that, had not the removal been accomplished by a petition (under the statute), rather than by a bill original in form directed to the judge of, and filed in, said court of equity, to which the administration was removed, the instant bill would lie under the well-recognized jurisdiction of a court of chancery in the administration of trust estates. The reason for the acquiring of jurisdiction in such matters by a court of equity has long been declared:
"In whatever way or for whatever purpose or in whatever form trusts arise under wills, they are exclusively within the jurisdiction of courts of equity. Indeed, so many arrangements, modifications, restraints, and intermediate directions are indispensable to the due administration of these trusts that without the interposition of courts of equity there would in many cases be a total failure of justice." 3 Story's Eq. Juris. (14th Ed.) § 1424 et seq.; 3 Pom. Eq. Juris. §§ 1155, 1157; 5 Pom. Eq. Juris. § 7.
The earlier decisions of this court required that a special equity be shown for removal of administration of estates from a probate to a chancery court. Trotter v. Blocker, 6 Port. 269, 289; Sellers v. Sellers, 35 Ala. 235, 240; Cowles v. Pollard,51 Ala. 445, 447; Clay, Adm'r, v. Gurley, Adm'r, 62 Ala. 14; Carroll v. Richardson, 87 Ala. 605, 610, 6 So. 342. The recent decisions are under the statute (Birmingham Trust Savings Co. v. Cannon, 204 Ala. 336, 342, 85 So. 768; Fowlkes v. Clay, 205 Ala. 523, 88 So. 651; Jemison v. Brasher, 202 Ala. 578, 579, 81 So. 80), where the right of removal of the administration of estates from the probate to a court of equity is provided for the parties indicated (Gen. Acts 1915, p. 738) without regard to a special equity being averred and shown.
Having taken jurisdiction, equity will administer the estate and apply the substantive law having application, in accordance with its own established procedure. No rule of law prevents the exercise of such original jurisdiction of a court of equity by reason of the removal of administration of the estate from a probate to a court of equity by separate petition under the statute, or that would render the instant bill for construction of the will and for inventories, etc., improperly filed or multifarious. The matters of relief sought — construction and inventories — have been held relevant and proper to a due administration of such an estate in equity. Parker v. Robertson, supra; Dooley v. Dooley, supra; Martin v. Cameron,203 Ala. 548, 549, 84 So. 270; Richter v. Richter, 180 Ala. 218,60 So. 880; Baker v. Mitchell, 109 Ala. 490, 20 So. 40; Tygh v. Dolan, 95 Ala. 269, 10 So. 837.
It is not proper on this appeal to determine the nature or character of estate vested in the respective parties by the will of Mr. Naugher or to define the extent of the powers of his executrix and trustee. Such is for primary consideration of the circuit court in equity. Ashurst v. Ashurst, 175 Ala. 667,670, 57 So. 442; Powell v. Labry (Ala.) 92 So. 266.1 The averments of the bill are sufficient to indicate that complainant is within a class indicated by statute having the right to effectuate a removal of the estate without averment of a special equity, and that she has such an interest in the estate of her deceased father that she may maintain the bill for construction of the will and for the requirement of an inventory, a necessary step in the due administration and protection of such a trust estate. The sustaining of demurrer by the decree, not rested on any special ground, may not be justified on the grounds assigned, challenging the sufficiency of the bill and complainant's averment of interest to have construction of the will, and for other orders necessary to the preservation of the estate, since it is of statutory requirement (Code, § 2686) that, in a proper case, settlements may be compelled by attachments or account stated by the court. The recent significant amendment thereof is that —
"Any executor or administrator may be required by citation to file his accounts and vouchers and to make a settlement notwithstanding any provision in any will or other instrument to the contrary," etc. Acts 1919, p. 566.
It is provided in section 2541 of the Code that a testator may exempt an executor from giving bond by express provision in his will; that such bond must not be required except: (1) When any executor, heir, legatee, or other person interested in the estate makes affidavit showing his interest and alleging that such interest will be endangered for want of security; and (2) when, in the opinion of the judge of probate, the estate is likely to be wasted to the prejudice of any person interested therein. Recent construction of several provisions of the statute was that the exemption provided in section 2541 did not permit a testator to exempt his executor from filing an inventory as required by sections 2579-2581, Code 1907; that such exception (under section 2541, Code) might be a sufficient excuse for failure to file an inventory in the first instance and until application is made therefor, and was no authority *Page 595 to prevent inventory being required on due application. Parker v. Robertson, supra.
The decree of the circuit court in equity sustaining demurrer (many grounds being assigned) will not be justified on the general demurrer assigned, "There is no equity in the bill." However, appropriate demurrer challenged the bill for misjoinder for its failure to affirmatively show that the parties made respondents thereto were necessary or proper parties. This fact may have been indicated by the terms of the will before the trial court and made a part of the bill. By some inadvertence the will is not incorporated in the transcript. The respective respondents challenged the right of complainant to make them parties against their objection, since it was not shown by averment that they were proper parties. The sustaining of demurrer may be justified for this failure of averment. Hodge v. Joy, ante, p. 198, 92 So. 171.
The judgment of the circuit court is affirmed.
Affirmed.
ANDERSON, C. J., and SAYRE, SOMERVILLE, GARDNER, and MILLER, JJ., concur.
McCLELLAN, J., concurs as indicated in his opinion infra.
1 Ante, p. 117.