Sellers v. Sellers

A. J. WALKER, C. J.

The chancellor dismissed the bill, for want of equity, before it was ripe for a hearing. Several questions, which counsel foresee will arise in the progress of the cause, as well as the equity of the bill, have been argued; but we shall consider only the question decided by the chancellor. If we were to go beyond the question of equity in the bill, we would exercise original, not appellate jurisdiction. In two cases, this court has declined to pass upon any other question than the equity of the bill, when the chancellor dismissed the bill, for want of equity, on a final hearing. — Byrd v. McDaniel, 26 Ala. 582; Bondurant v. Sibley’s Heirs, 29 Ala. 570. While we do not intend now to reassert the practice suggested by those cases, and lay down a rule which would preclude us from passing upon the merits of the case, when they were before the chancellor, but were left unconsidered, because he thought the bill did not contain equity; yet we are clearly of the opinion, that it would be improper for us to decide any other question than the equity of the bill, when there was a dismissal for want of equity before the hearing of the cause.

[2.] The chanceller erred in dismissing the bill. It is certain that the facts set forth by the complainant show that the duties of the trust devolved upon him are doubtful, difficult, and embarrassing; and he has a right to come into the chancery court, and seek its aid and direction, and to obtain a construction of the testator’s will. Trotter v. Blocker, 6 Porter, 269-290; 2 Story’s Eq. Jur. 436, § 1065.

[3.] It is claimed, also, that the bill contains equity, to take an account against Mrs. Sellers, the resigned executrix. The will directs, that the residue of the testator’s property should be kept together, under the control and management of Mrs. Sellers, “ to be managed entirely at her discretion,” for the use and benefit of the testator’s family, for the support of his wife, and for the support and education of his children. The will also expresses the testator’s desire, that Mrs. S. should not be held to account, or to settle with the orphans’ court, for the management and possession of his estate. So far as the conduct of Mrs. S. had reference to the support of the family, and the support and education of the children, she acted under a discretionary power, and would not. be responsible, unless her conduct was fraudulent, which is negatived by the allegations of the bill. We think, too, that so far as the mere “ management and possession of the estate” were concerned, the will exempts her from accounting, and also from the duty of settling in the court designated. Viewing the sentence as to the liability to account in connection with the discretionary power bestowed upon her, and looking to the grammatical construction of the sen.tence, we understand it to relieve her altogether from liability to account for the “ management and possession of the estate.” The word estate is used in various senses. It is often used to designate the property composing the assets of a decedent; or the property, real and personal, belonging to an existing individual. In that sense, we think the word is used in the will. In the same connection, there is an exemption from liability to account for the possession of the estate. The thing intended to be designated, was something tangible — susceptible of possession, as well as management. The clause must, therefore, be understood to relieve her from liability to account for the management and possession of the property belonging to the estate, and coming under the operation of the will. She is also relieved from settling in the orphans’ court; but the Words relieving her from that duty, do not have a sufficiently extensive import to justify us in holding her exempted from responsibility in any forum.

After conceding to Mrs. S. an exemption from accountability in the particulars pointed out, there remains, under the allegations of the bill, such a complication of accounts, connected with such trusts, as would authorize the chancery court to take jurisdiction.

We have avoided, in this opinion, the question, whether an administrator tie bonis non can, in the absence of any special cause, come into the chancery court, to compel a settlement by his predecessor, before the jurisdiction of the probate court has attached.' We mention the question for the purpose of saying, that its decision is not to be implied from our failure to notice it. Its decision in this case is not necessary.

The decree of the court below is reversed, and the cause remanded.

Stone, J., not sitting.