Hinson v. Naugher

I concur in the affirmance of the decretal order sustaining the demurrer to appellant's bill; but the writer's concurrence is based upon the demurrer's ground that there is "no equity in the bill."

It appears from the averments of the bill, as well as from the record proper set out in the present transcript, that two days before this bill was filed the appellant (complainant) by her petition caused the removal of the estate of Naugher from the probate into the circuit court in equity, in accordance with the provisions of General Acts 1911, pp. 574, 575, as amended (section 3) by General Acts 1915, pp. 738, 739. The completely effectuated removal of the administration of the estate from the former into the latter court (in equity) operated to completely invest the court of equity with jurisdiction to administer the estate of the testator. When so removed, it is a pending proceeding, a cause, in the equity court. The administration of an estate in equity, as it is in a probate court, "is in the nature of a proceeding in rem, and is therefore one as to which all the world is charged with notice." Goodrich v. Ferris, 214 U.S. 71, 80, 81,29 Sup. Ct. 580, 583 (53 L. Ed. 914); White v. Hill, 176 Ala. 480, 486, 487,58 So. 444. The jurisdiction with which the court of equity became thus and thereby invested comprehended the judicial power to make all orders or decrees necessary to the administration of the estate, such as issuing notices of administrational acts or proceedings to persons in interest, construing wills, requiring inventory, preserving the estate, and exacting such preservative bond as was or may become essential to the efficient administration of the estate or the execution of the testator's will. All such matters as pertain to interlocutory acts of administration of an estate so removed may and should, in the writer's opinion, be presented for consideration and judgment by petition. That practice would serve to expedite administration and conduce to a very desirable economy that could not be obtained through the expensive and much slower process of recourse to formal original bills, a method this appellant seeks to employ. Indeed, section 2 of the act of 1911 (above cited) contemplates a practice in administration of estates in equity otherwise than by original bills. That section (2) of the act of 1911 was not changed by the act of 1915 cited ante. Section 2 reads:

"That the chancery court, or court of like jurisdiction, in this state shall be considered always open for the purpose of hearing petitions, applications, motions and reports, and making any and all necessary or proper orders or decrees in the administration of estates in said court."

This unrestricted facility for hearing and for procedure in the premises consists, of course, with the execution of the complete jurisdiction of the subject-matter obtained when the order of removal is entered. Gen. Acts, supra. Features of section 1 of the act of 1911 are intended simply to preserve for sensible employment the processes of equity to effect the full service of that character of tribunal in the administration of estates removed to it — features manifesting statutory caution not at all inconsistent with the provision of section 2 quoted above.

Apart from these strongly persuasive provisions of section 2 of the act of 1911, it is, on proper occasion, a matter of discretion with the court (in equity) whether the procedural method shall be by petition or by original bill Sayre v. Elyton Land Co., 73 Ala. 85, 97. In this case it was said:

"If there be not peculiar circumstances rendering it necessary that the proceedings and issues should be put in a more formal and permanent shape than they could be by petition, or if petition is not an inadequate remedy, the court will discountenance a resort to the more dilatory and expensive remedy of an original bill."

Where, as here, the court has acquired complete jurisdiction of the administration of an estate, there is neither necessity nor occasion to employ the "dilatory and expensive remedy by original bill" when petition would serve every legitimate purpose. In this instance the court's action may be justified *Page 596 as an exercise of its discretion in the premises.

Again, there can be no equity in an original bill when in a pending cause in the same court the proponent of the original bill may, through interlocutory proceedings in the pending cause, have the full relief he seeks in his original bill. The principle, as applied to cross-bills invoking relief already obtainable in the main cause, has been stated and illustrated in Haralson v. Whitcomb, 200 Ala. 165, 166, 75 So. 913, and cases there cited, affording apt analogy. By petition this appellant could have invoked the court's particular power and consideration of every matter alluded to in her original bill. No court in this state administering an estate would withhold its powers, efficiently invoked, to adjudicate every question due to be determined in such a service, the court being, as section 2 of the act of 1911 provides, "always open" for every purpose of administration. If such dereliction should appear, mandamus would issue to compel action. There are no decisions in this jurisdiction sustaining the equity of this bill. To affirm equity of an original bill in the circumstances here present must inevitably introduce needless duplication and confusion as well as costly delay in the administration of estates. Illustrations of this unhappy condition will readily occur to the informed practitioner.