Opinion
6 Div. 356.
June 30, 1945. Rehearing Denied November 1, 1945.
Petition of Mrs. Dimmis Riley for mandamus to require J. Russell McElroy, Whit Windham and John C. Morrow, as Judges of the Circuit Court, Jefferson County to vacate and set aside an order or decree striking a motion made by petitioner in the cause entitled In the Matter of the administration of the estate of Edward Wilkinson, deceased, to appoint an administrator ad litem to represent the estate in said proceeding, consolidated with a petition to like effect by Mrs. Marguerite W. Mudd, and with separate petitions by Mrs. Riley and Mrs. Mudd for mandamus to require Julian Harris, as Special Judge of said Court, to vacate an order or decree granting a motion to strike pleas in abatement filed by petitioners in said proceeding, and intervention by Edward Wilkinson, Jr., as executor and trustee under the will of Edward Wilkinson, deceased.
Writ denied.
The motion for appointment of special administrator is as follows:
"Now comes Mrs Marguerite W. Mudd and Mrs. Dimmis W. Riley, separately and severally, in the above styled cause and each of them, separately and severally, move the Court as follows:
"1. To appoint an administrator ad litem or a special administrator with the will annexed and a special trustee, in lieu of Edward Wilkinson, Jr., as one of the executor-trustees of the estate of Edward Wilkinson, Sr., deceased, to represent said estate in this proceeding.
"2. To direct said executor-trustee to employ counsel, if he desires to employ counsel, who does not represent any of the beneficiaries.
"Marguerite W. Mudd and Dimmis W. Riley, separately and severally show unto the Court that Edward Wilkinson, Jr., is one of the beneficiaries of the estate of Edward Wilkinson, Sr., deceased, and is one of the beneficiaries of one of the trusts created by Edward Wilkinson, Sr., during his lifetime and is possibly a beneficiary of the trust created by the will of Edward Wilkinson, Sr., deceased.
"Respondents further aver that Edward Wilkinson, Jr.'s personal, pecuniary interest is opposed to the interest of the estate and to the interests of Marguerite W. Mudd and Dimmis W. Riley as beneficiaries of said estate and the trust created by the will of the decedent and of the trusts created by him during his lifetime; these respondents are entitled to the services of an administrator or executor and to the services of a trustee who does not have an adverse interest that conflicts with their interests and with the interests of the estate and that they are entitled to have said administrator and said trustee represented by counsel who do not have an interest that is opposed to these respondents' interests and to the best interest of the estate.
"Respondents further aver that Edward Wilkinson, Jr., advised and consulted and agreed with his sister for her to borrow to wit: $50,000.00 to use, and which was used, in bidding for an [and] allegedly purchasing the alleged stock in the Western Grain Company, which it is claimed was offered for sale by the Collector, although the said Edward Wilkinson, Jr., and the said Elizabeth Lanier knew at said time that the alleged sale was void, and has so advised the Collector of Internal Revenue in writing, and prior to said sale procured the dismissal of a proceeding relating to said sale instituted by Edward Wilkinson, Jr., in the United States District Court, Southern Division, Northern District of Alabama, against the Collector of Internal Revenue in order to prevent Mrs. Mudd from intervening in said proceeding and obtaining a decree declaring said sale was void. Respondents aver that said alleged sale was in fact void. On information and belief, these respondents aver that Edward Wilkinson, Jr., endorsed the note that was given as evidence of the loan; he pledged certain stocks or securities owned by Edward Wilkinson, Jr., as security for the loan made by Elizabeth W. Lanier and endorsed by Edward Wilkinson, Jr. Edward Wilkinson, Jr., and Elizabeth W. Lanier now claim that Elizabeth W. Lanier is entitled to and should be subrogated to the alleged lien and claim of the United States of America for additional estate taxes, for which it is claimed said stock was sold, and should be invested with the title to 34 shares of the common stock of the Western Grain Company, now owned by the estate of Edward Wilkinson, deceased, and standing on the books of said corporation in the name of Edward Wilkinson, Jr., and Elizabeth Lanier as executors of the estate of Edward Wilkinson, deceased, subject to the contract executed by Bethea McCall as executor with Mrs. Marguerite Mudd.
"That said Edward Wilkinson, Jr., has promised said Elizabeth W. Lanier that he will aid and assist her in having the title to said 34 shares of stock invested in her and divested out of the estate of Edward Wilkinson, deceased, to the prejudice and detriment of said estate, and has assured said Elizabeth Lanier that he will undertake to have a claim established in her favor against said estate, or aid her in establishing said claim against the estate of the decedent in the sum of to-wit: $50,320, and to have a lien declared on sufficient stock in the Western Grain Company, owned by the estate, subject to the contract of sale, to satisfy said lien, and to have said lien foreclosed, if said claim is not paid.
"Respondents further aver that Elizabeth W. Lanier does not have an estate sufficient to repay the said loan that she made which Edward Wilkinson Jr., endorsed as aforesaid, and that if she is unable to obtain title to said 34 shares of stock or reimbursement for the sum bid at said alleged sale, the said Edward Wilkinson, Jr., by reason of his endorsement of said note, will be called on to pay said sum, and that Edward Wilkinson, Jr., is now divided in his loyalty and has definitely taken the position that Elizabeth Lanier should be invested with the title to 34 shares of said stock now owned by the estate of the decedent subject to said contract between said McCall and Mrs. Mudd or be reimbursed by said estate for the sum bid at said alleged sale, and that this proceeding and its prosecution is an effort on the part of Edward Wilkinson, Jr., to consummate and bring about that result."
The following is the plea in abatement:
"Now comes Mrs. Marguerite W. Mudd and says that the petition filed on February 5, 1944, as amended on April 18, 1944, as last amended should not be maintained against her and that same was filed by counsel not authorized to file the same and who were legally disqualified from filing the same and that said petition as last amended should now be abated and for additional plea in abatement thereto, files the following plea in abatement:
"Plea Five"Mrs. Elizabeth Lanier has a claim against the estate of Edward Wilkinson, Sr., deceased, for the sum of to-wit, $50,320 or 34 shares of the common stock of the Western Grain Company, a corporation, owned by decedent at the time of his death and held in his estate since said time. Said claim arises out of the fact that Elizabeth Lanier borrowed about $40,000 from the First National Bank of Birmingham, Alabama, and evidenced her indebtedness to said bank by an instrument in writing known as a collateral promissory note, in which she pledged certain securities to said bank as security for said loan. Mrs. Lanier claims that she used said sum, together with other funds, in paying the Collector of Internal Revenue the sum stated in the petition as last amended and that because she paid the Collector of Internal Revenue said sum, the estate of the decedent is obligated to reimburse her for said sum or to convey to her 34 shares of the common stock of the Western Grain Company, a corporation, now held in the estate of the decedent.
"Edward Wilkinson, Jr., individually, is financially interested in the claim of Mrs. Elizabeth Lanier. Said interest arises out of the fact that Edward Wilkinson, Jr., loaned Mrs. Lanier certain securities owned by him which he claims were worth about $20,000 at said time, for the purpose of using said securities as collateral to said loan and which securities Mrs. Lanier pledged to said bank in said collateral note as security for said loan.
"This respondent is informed and believes and on such information and belief, avers that unless Mrs. Lanier can succeed in recovering to-wit, $50,320 from the estate of the decedent or 34 shares of said stock, that she will be unable to pay her indebtedness to said bank and that it will be necessary for said bank to sell the collateral pledged by Mrs. Lanier, including the said securities owned by Edward Wilkinson, Jr., for the satisfaction of its indebtedness and that it will likely or probably do so when said debt matures and that Edward Wilkinson, Jr., as one of the executors of the estate of the decedent is undertaking to aid and assist Mrs. Lanier in enforcing her claim against the estate of the decedent in order to save the securities which he individually loaned her and which were used by her as aforesaid.
"This respondent and Mrs. Dimmis Riley, heirs of the decedent, resist said claim and dispute its validity. All of these matters were fully known to Bradley, Baldwin, All White before the petition as last amended was filed in this cause, on, to-wit, the 5th day of February, 1944.
"This proceeding which was instituted by Bradley, Baldwin, All White, is the first step or initial effort on their part to enforce said claim for Mrs. Elizabeth Lanier against the estate of the decedent.
"Bradley, Baldwin, All White claim that they have been attorneys for Edward Wilkinson, Jr., as one of the executors of the estate of the decedent since their alleged employment before the settlement of May 25, 1942, and they claim that they are now attorneys for said executor and they have been for some time past appearing as Solicitors of Record for him in this Court. The interest of Mrs. Elizabeth Lanier in the matter of her claim is opposed to the interests of the estate of the decedent and is opposed to the interest of Mrs. Marguerite Mudd and Mrs. Dimmis Riley, two of the beneficiaries of said estate and the validity of said claim is disputed by them and its payment is opposed by them. This respondent is advised by counsel, informed and believes and on such advice, information and belief, avers that Bradley, — All White as attorneys for Edward Wilkinson, Jr., as one of the executors of the will of the decedent, occupy the same relation to the estate and to the heirs of the decedent as does Edward Wilkinson Jr., as one of the executors of the will of the decedent and that they cannot lawfully act as counsel for Elizabeth Lanier whose interests are adverse to those of the estate with which they are so identified.
"This respondent is further advised by counsel, informed and believes and on such information, advice and belief, avers that Edward Wilkinson, Jr., as one of the executors of the estate of the decedent, had no authority to employ Bradley, Baldwin, All White and that Bradley, Baldwin, All White had no authority to accept employment from him as such executor to prosecute a claim against the estate of the decedent in favor of Mrs. Elizabeth Lanier for the sum of to-wit, $50,320 or 34 shares of the common stock of the Western Grain Company held in the estate of the decedent.
"Wherefore this respondent prays that the petition as last amended be abated.
"And for further and additional special plea in abatement to so much of the petition as last amended as seeks cancellation or nullification of the written contract entered into between Bethea McCall as executor and Mrs. Marguerite Mudd on, to-wit, the 21st day of January, 1944, a copy of which is made Exhibit A to the petition as last amended and an injunction against compliance with said contract, this respondent files the foregoing plea numbered five.
"And for further and additional special plea in abatement to so much of the petition as last amended as seeks a declaration or adjudication that Mrs. Marguerite Mudd violated the decree of January 20, 1944, and a decree requiring rescission of the contract entered into with Bethea McCall as executor and a denial of the right to be heard until that is done separately and severally, this respondent files the foregoing plea numbered five."
The answer of the judges is in substance as follows:
"2. The respondents admit that Edward Wilkinson, Jr., is one of the beneficiaries of the estate of Edward Wilkinson, Sr., deceased, of one of the trusts created by said decedent during his lifetime and is probably beneficiary of the trusts created by the will of said decedent. The respondents do not have sufficient information on which to form a belief as to whether or not the personal pecuniary interest of said Edward Wilkinson, Jr., is opposed to the interest of the estate and of Marguerite W. Mudd and Dimmis W. Riley as beneficiaries of said estate and trusts created by the will of the decedent and of the trusts created by him during his lifetime and, therefore, deny the same and demand strict proof thereof. As to whether or not said Marguerite W. Mudd and Dimmis W. Riley are entitled to the services of an administrator and trustee who do not have an adverse interest that conflicts with their interest, the same presents a question of law as to which the decision of the respondents is contrary to the said allegation and respondents rest their case upon the decree entered by them on June 9, 1944.
"3. The respondents, on advice by counsel for said Edward Wilkinson, Jr., and on the basis of the information so supplied and in the belief that it is true, say that counsel for the petitioner in the above entitled motion stated to the Court that the sum borrowed by Mrs. Elizabeth W. Lanier, sister of Edward Wilkinson, Jr., was the sum of, to-wit, $40,000.00, not $50,000.00, as alleged in the motion for special administrator, etc., and that the note executed by Mrs. Lanier to evidence said indebtedness was not endorsed by Edward Wilkinson, Jr., as alleged in said motion. Respondents being advised by counsel for Edward Wilkinson, Jr., that the following facts alleged in said motion are true, acknowledge that said sum was borrowed, that Mrs. Lanier bid for certain shares of the stock in Western Grain Company which were offered for sale by the United States Collector of Internal Revenue for the District of Alabama and used said sum in making payment for part of the purchase price therefor; that Edward Wilkinson, Jr., pledged certain stocks or securities owned by him as security for the loan made by Mrs. Lanier; that he acknowledges that Mrs. Lanier should be invested with the title to thirty-four shares of the common stock of Western Grain Company which Mrs. Lanier undertook to bid for and purchase at the Collector's sale as aforesaid and that said Edward Wilkinson, Jr., on, to-wit, June 20, 1944, filed a petition in the cause pending in the Circuit Court for the Tenth Judicial Circuit entitled "In the Matter of the Estate of Edward Wilkinson, Deceased" in Equity No. 53,010, in which is included a prayer that the Court do decree that she does have title to said thirty-four shares of common stock of Western Grain. Company.
"4. The respondents do not have any information to form a belief as to the truth of the other allegations of the said motion for special administrator, etc., except such as may be disclosed by the petition filed by said Edward Wilkinson, Jr., and said Elizabeth W. Lanier in said cause on, to-wit, February 5, 1944, and by the various amendments thereto and by the said petition filed by the said Edward Wilkinson, Jr., in said cause on, to-wit, June 29, 1944, the various amendments thereto and the answer filed in said cause by said Elizabeth W. Lanier, to all of which reference is made as if said pleadings were expressly incorporated in this answer, and decreeing the information disclosed thereby sufficient on which to form a belief as to the truth of the remaining allegations of said motion for special administrator, etc., deny the same and demand strict proof thereof. Counsel for said Edward Wilkinson, Jr., have undertaken to inform the respondents that the said Edward Wilkinson, Jr., as a beneficiary under the will of his father, the senior of that name, is, or may become, entitled to interests of value in the said estate in case the claims of said Elizabeth W. Lanier are defeated and he, individually, is entitled to take advantage of the same; and said counsel have also undertaken to inform the respondents that the said Elizabeth W. Lanier is a beneficiary of the will of said decedent and certain trusts created by him during his lifetime, copies of which appear in the record, in addition to the securities alleged in said motion for special administrator, etc., to have been deposited by her to secure the money borrowed by her. While the respondents may take judicial notice of the contents of said will and of said trusts, they deem that there are no sufficient allegations in the said motion for a special administrator, etc., respecting the value of common stock in Western Grain Company and of said interests on which they may form a belief as to whether or not the said Elizabeth W. Lanier may be unable to pay said indebtedness or as to whether or not the interest of said Edward Wilkinson, Jr., is adverse to the estate and its beneficiaries, and, therefore, deny said allegations.
"5. It is alleged in the amendment of the petition filed by said Edward Wilkinson, Jr., and Elizabeth W. Lanier in said cause on, to-wit, February 5, 1944, and in amendments to such amended petition, which are recorded in the record in the above entitled cause, and not anywhere denied to the knowledge of the respondents, that all living persons who have, or may acquire, an interest in the estate of said decedent, have been made parties to said cause, and it appears from the records of the Circuit Court in said cause that all of said parties have appeared in various proceedings therein or that guardians ad litem have been appointed for them, as well as for unborn persons who may hereafter be born and acquire an interest in said estate, such appointments appearing of record in the above entitled cause. The respondents, after consideration of the facts stated in this paragraph and of the law applicable thereto, arrived at the decision that they required the denial of the motion for special administrator, etc., and accordingly entered a decree to that effect of June 9, 1944, said decree appearing of record in the above entitled cause."
Horace C. Wilkinson, of Birmingham, for petitioner.
An executor with a pecuniary interest adverse to the interest of the estate should be supplanted by an administrator ad litem. Code 1940, Tit. 61, § 165; Tit. 58, § 65; Flomerfelt v. Siglin, 155 Ala. 633, 47 So. 106, 130 Am.St.Rep. 67; In re Jones' Estate, Okl.Sup., 155 P.2d 980; Heward v. Slagle, 52 Ill. 336; Cornell v. Gallaher, 16 Cal. 367; Estate of Garber, 74 Cal. 338, 16 P. 233. It is a fraud in law for an administrator to take for his own benefit a position in which his interest will conflict with his duty. Scholtz v. Hazard, 68 Colo. 343, 191 P. 123; Bruun v. Hanson, 9 Cir., 103 F.2d 685; 33 C.J.S., Executors and Administrators, § 142, p. 1102. An administrator has no right to represent the personal interests of a claimant at the expense of the estate, to the detriment of the heirs at law. Ekdahl v. Wessman, 127 Conn. 141, 14 A.2d 757, 129 A.L.R. 920, 921; In re Trusteeship of Stone, 138 Ohio St. 293, 34 N.E.2d 755, 134 A.L.R. 1306, 1307; Clark v. Clark, 167 Ga. 1, 144 S.E. 787; Wendt v. Fischer, 243 N.Y. 439, 154 N.E. 303; Munson v. Syracuse, c., R. Co., 103 N.Y. 58, 8 N.E. 355. Attorneys for a personal representative occupy the same relation to the estate as does the representative. Bruun v. Hanson, supra. Such attorney cannot be allowed to prosecute a claim against the estate he is obligated to represent. 1 Thornton, Attys. at Law, 307. An attorney cannot represent conflicting interests. Agnew v. Walden, 84 Ala. 502, 4 So. 672; Parker v. Parker, 99 Ala. 239, 13 So. 520, 42 Am.St.Rep. 48; Strong v. Int. Bldg. Union, 183 Ill. 97, 55 N.E. 675, 47 L.R.A. 792; Murray v. Lizotte, 31 R.I. 509, 77 A. 231; State v. Halstead, 73 Iowa 376, 35 N.W. 457; Gooch v. Peebles, 105 N.C. 411, 11 S.E. 415; Cox v. Barnes, 45 Neb. 172, 63 N.W. 394; Bryant v. McIntosh, 3 Cal.App. 95, 84 P. 440; Marcom v. Wyatt, 117 N.C. 129, 23 S.E. 169; Belfield v. Booth, 63 Conn. 299, 27 A. 585; Smith v. Jordan, 77 Conn. 469, 59 A. 507; Jones v. Boulware, 39 Tex. 367; Spinks v. Davis, 32 Miss. 152. Consent of client for his attorney to accept employment by one having an adverse interest is contrary to public policy, and does not constitute waiver of wrong done by accepting such employment. Strong v. Int. Bldg. Union, supra; Herrick v. Catley, 30 How.Prac., N.Y., 208; MacDonald v. Wagner, 5 Mo. App. 56. It is the duty of the court to restrain an attorney from representing adverse interests. Weidekind v. Tuolumne County Water Co., 74 Cal. 386, 19 P. 173, 5 Am.St.Rep. 445; Wilson v. State, 16 Ind. 392; Bowman v. Bowman, 153 Ind. 498, 55 N.E. 422; State v. Halstead, supra; Brown v. Miller, 52 App.D.C. 330, 286 F. 994. Joining party to suit by attorney without authority to represent the party is a fraud at law without regard to motive. Hirsch Bros. v. R. E. Kennington Co., 155 Miss. 242, 124 So. 344, 88 A.L.R. 1. Proper method of making test of attorney's lack of authority to institute suit is by plea in abatement. Caples v. Nazareth Church, 245 Ala. 656, 18 So.2d 383; Blount v. 16th St. Church, 206 Ala. 423, 90 So. 602; Mitchell v. Church of Christ, 219 Ala. 322, 122 So. 341.
Bradley, Baldwin, All White, of Birmingham, for intervener.
It would be useless to require the additional expense of an administrator ad litem and another attorney if litigation must be required of them. The motion for such administrator was properly denied. Walsh v. Walsh, 231 Ala. 305, 164 So. 822; Taylor v. Fulghum, 206 Ala. 219, 89 So. 702; Faulk v. Money, 236 Ala. 69, 181 So. 256; Ex parte Baker, 118 Ala. 185, 23 So. 996; Code 1940, Tit. 61, § 165. The pleadings are defective in alleging, except as a conclusion of the pleader, that the interest of Edward Wilkinson, Jr., is adverse to that of the estate. There is no way for the court to determine the question. Even if the collector's sale was void or voidable so that Mrs. Lanier should not receive her shares, she would apparently be entitled to reimbursement or subrogation. Anniston Pipe Wks. v. Williams, 106 Ala. 324, 18 So. 111, 54 Am.St.Rep. 51; Schuessler v. Shelnut, 233 Ala. 188, 171 So. 259. There is no allegation that there was fraud in the sale. If one of Mrs. Lanier's claims, to the shares of stock, to reimbursement or subrogation is valid Edward Wilkinson, Jr., would be charged with the duty of acknowledging that fact and not of disputing it, for an executor should not question a meritorious claim. Perry on Trusts 891, § 476a; O'Neill v. Donnell, 9 Ala. 734; Shelton v. Carpenter, 60 Ala. 201; Pearson v. Darrington, 32 Ala. 227; Bendall v. Bendall, 24 Ala. 295, 60 Am.Dec. 469; Prewar v. Davis, 109 Ala. 117, 19 So. 440; 34 C.J.S., Executors and Administrators, § 440, p. 259; Marks v. Semple, 111 Ala. 637, 20 So. 791; Scott on Trusts, § 192. Plea in abatement should conform to the requirements of proper pleading. Scharfenberg v. New Decatur, 155 Ala. 651, 47 So. 95; Ellis v. Drake, 203 Ala. 457, 83. So. 281; Hughes v. Skidmore, 228 Ala. 348, 153 So. 399. There being doubt as to which claim should be allowed there would seem to be no alternative but to submit the question to a court of equity. Taylor v. Fulgham, supra. Attack on the validity of the collector's sale cannot be done collaterally, but only on direct attack. Logan v. Central I. c., 139 Ala. 548, 36 So. 729; Chattanooga Nat. Ass'n v. Vaught, 143 Ala. 389, 39 So. 215; Anniston Pipe Co. v. Williams, supra; Freeman on Judgments, §§ 334, 336.
This proceeding is another phase of the litigation growing out of the estate of Edward Wilkinson, deceased. Two questions are here presented for review: (1) The right vel non of certain parties interested in the estate to have an administrator ad litem appointed by the court pursuant to section 165, Title 61, Code of 1940, to represent the estate on the hearing of a petition known as the petition of February 5, 1944; (2) the right vel non of certain attorneys to file the petition of February 5, 1944.
Other branches of the litigation are Riley v. Wilkinson et al., Ala.Sup., 23 So.2d 582; Wilkinson v. Wilkinson, Ala. Sup., 23 So.2d 601; and Wilkinson v. McCall, Ala.Sup., 23 So.2d 577. For a complete understanding of this case, reference is made to these other cases. While we. shall attempt not to repeat in too great detail the facts set forth in the other cases, it is necessary for an understanding of this case that enough of the facts be stated as will give an adequate background of this branch of the litigation.
Ante, p. 231.
Post, p. 702.
Ante, p. 225.
Edward Wilkinson, Sr., died on November 6, 1941, leaving surviving him his widow, Grace Wilkinson, and four children, Mrs. Marguerite Mudd, wife of J. P. Mudd; Mrs. Elizabeth Lanier, wife of Sterling Lanier; Mrs. Dimmis Riley, wife of E. W. Riley; and Edward Wilkinson, Jr. The estate of the decedent consisted principally of 151 shares of common stock of the Western Grain Company. Under the will of the decedent, which was probated in the Probate Court of Jefferson County, Edward Wilkinson, Jr., and Mrs. Lanier were appointed coexecutors. During the life of Edward Wilkinson he created five separate trusts for the benefit of his wife and four children. He named himself trustee in each of the trusts and named Edward Wilkinson, Jr., and Mrs. Lanier as successor trustees. The property in each of the trusts consisted solely of shares of common stock of Western Grain Company. At the time of decedent's death there were outstanding 500 shares of common stock and 150 shares of preferred stock in the Western Grain Company. On December 17, 1941, a meeting of the stockholders was called, at which it was proposed to elect Edward Wilkinson, Jr., as president of the company. Mr. and Mrs. Mudd objected on the grounds that he was neither capable nor fit for the office. The voting resulted in election of Edward Wilkinson, Jr.
On December 22, 1941, Mr. and Mrs. J. P. Mudd and Mrs. Grace Wilkinson, by Mr. Mudd as next friend, filed a bill in equity praying for the removal of Edward Wilkinson, Jr., as president of Western Grain Company and the removal of Edward Wilkinson, Jr., and Elizabeth Lanier as executors and trustees. On May 25, 1942, the suit was settled by agreement. Among other things, the decree settling the litigation enjoined Edward Wilkinson, Jr., and Mrs. Lanier from voting any stock standing in their names in a representative capacity for the benefit of any executors in the estate of Edward Wilkinson or trustees in the trusts created by him, as a salaried officer of Western Grain. The decree also provided for the resignation of Edward Wilkinson, Jr., as president of Western Grain and for the resignation of Mrs. Elizabeth Lanier as coexecutor and cotrustee and provided that the appointment of a successor coexecutor and cotrustee would be made by the court. At the conclusion of the litigation, Bethea McCall was made president and general manager of Western Grain.
The company prospered under the new management, but this resulted in problems relating to income taxes, and the feeling between the two factions in the family, Mr. and Mrs. Mudd and Mrs. Dimmis Riley on the one hand and Edward Wilkinson, Jr., and Mrs. Elizabeth Lanier on the other hand, grew more and more bitter, and there were threats of receivership and litigation to set aside the settlement under the decree of May 25, 1942. In the meantime the court induced Bethea McCall to accept the appointment as coexecutor and cotrustee under the will of the deceased.
On December 15, 1942, an action was instituted to set aside the settlement under the decree of May 25, 1942. In the meantime the matter of the estate tax was becoming a matter of growing importance. In the early part of 1943 the estate tax return was filed and the government entered a deficiency estate tax assessment which called for the additional payment by the estate of $52,000. The estate had only $6,000 in cash.
A petition was filed on October 16, 1943, by the coexecutors asking the court for instructions as to how to meet the payment of the tax. While evidence was being taken on that petition, a deputy collector seized certificate No. 38 for 150 shares and certificate No. 41 for one share of stock of Western Grain. These certificates were issued to the decedent during his lifetime and were in the custody of Western Grain or Bethea McCall, as coexecutor, at the time they were seized. These certificates had been previously surrendered to the Western Grain Company after the death of decedent, before they were seized, in exchange for a new certificate, No. 71, for 151 shares issued to the coexecutors and cotrustees at that time. Certificate No. 71 was never seized by the collector. The collector was threatening to sell at least 150 shares of stock on January 24, 1944.
On January 20, 1944, the court entered a final decree which provided a plan for raising the money to meet the assessment through a sale of stock under certain conditions. The decree enjoined disposition of the stock on a basis at variance with the decree. The same day the decree was superseded by supersedeas bond and the next day Bethea McCall, as coexecutor, and Mrs. Marguerite Mudd made a contract under which, among other things, Mrs. Mudd agreed to purchase 151 shares of common stock of Western Grain on a certain basis. It is claimed that this contract violated the decree of January 20, 1944, and the petition, hereinabove referred to as the petition of February 5, 1944, was filed by Mrs. Elizabeth Lanier and Edward Wilkinson, Jr., individually and as coexecutor, to set aside the contract of sale made between Mrs. Mudd and Bethea McCall, as coexecutor.
On February 3, 1944, the collector held his sale, selling thirty-four shares of the stock on a basis of $1,480 per share to Mrs. Lanier and the tax was paid.
Mrs. Dimmis Riley and Mrs. Marguerite Mudd separately and severally made a motion, based on the alleged adversary pecuniary interest of Edward Wilkinson, Jr., for the appointment of an administrator ad litem to represent the estate of the decedent on the hearing of the petition of February 5, 1944, and to give such administrator ad litem authority to employ counsel not otherwise interested in the cause. (The motion will appear in the report of the case.) Mrs. Elizabeth Lanier and Edward Wilkinson, Jr., made a motion to strike the motion for the appointment of an administrator ad litem. The court, consisting of three judges, McElroy, Windham and Morrow, granted the motion to strike the motion for the appointment of an administrator ad litem.
Subsequently Mrs. Marguerite Mudd filed a plea in abatement No. 5 to the petition of February 5, 1944. (Plea in abatement No. 5 will be set out in the report of the case.) On the same day Mrs. Dimmis Riley filed her plea in abatement, which was an adoption of the plea in abatement of Mrs. Marguerite Mudd. The plea in abatement alleged in effect that counsel were not authorized to file and were disqualified from filing the petition of February 5, 1944. Judge Julian Harris rendered decrees striking the plea in abatement on the motion of Mrs. Lanier and Edward Wilkinson, Jr., individually and in his capacity as executor of the will and trustee thereunder.
This court is asked to review each of the aforesaid rulings by mandamus and four causes are submitted, each on petition for mandamus, motion to strike, and respective answer thereto of the judges. No objection is made to review by mandamus. The salient features of the answer of the judges will appear in the report of the case. We have here a motion of Mrs. Dimmis Riley for a writ of mandamus to Judges McElroy, Windham and Morrow, 6 Div. 356; a motion of Mrs. Marguerite W. Mudd for a writ of mandamus to Judges McElroy, Windham and Morrow, 6 Div. 357, 23 So.2d 601; a motion of Mrs. Dimmis Riley for a writ of mandamus to Judge Julian Harris, 6 Div. 354, 23 So.2d 601; and a motion of Mrs. Marguerite W. Mudd for a writ of mandamus to Judge Julian Harris, 6 Div. 355, 23 So.2d 601.fn1 These cases have been consolidated and will be here considered together. Edward Wilkinson, Jr., as executor of the will of Edward Wilkinson, deceased, and trustee thereunder, has asked to be allowed to intervene. He will be considered as a party to these mandamus proceedings.
Post, p. 699.
Post, p. 700.
It should be clearly understood that the merits of the petition of February 5, 1944, to cancel the Mudd-McCall contract for the sale of 151 shares of stock in Western Grain Company, are not involved in the matter now before us. While the present motion of Mrs. Riley and Mrs. Mudd and their plea in abatement do not attack the petition of February 5, 1944, on its merits, they do question the right or propriety of Edward Wilkinson, as coexecutor, and his attorneys to institute the petition. The plea in abatement directly questions the right to employ the attorneys. The motion by seeking an administrator, who will supersede Edward Wilkinson, Jr., with respect to the petition of February 5, 1944, has the same object.
Section 165, Title 61, Code of 1940, provides as follows: "§ 165. When administrator ad litem appointed. — When, in any proceeding in the probate or circuit court, or other court having equity jurisdiction, the estate of a deceased person must be represented, and there is no executor or administrator of such estate, or he is interested adversely thereto, it shall be the duty of the court to appoint an administrator ad litem of such estate for the particular proceeding, without bond, whenever the facts rendering such appointment necessary shall appear in the record of such case, or shall be made known to the court by the affidavit of any person interested therein."
Prior to the enactment of the statute an administrator ad litem was unknown to our law and the appointment of such an administrator was void. McCall v. McCurdy, 69 Ala. 65, 72. Under the statute three things must concur to justify the appointment: (1) The estate of the deceased person "must be represented," which means that the interests of the estate require representation. (2) "There is no executor or administrator of such estate, or he is interested adversely thereto." (3) "The facts rendering such appointment necessary shall appear in the record of such case, or shall be made known to the court by the affidavit of any person interested therein." See Gayle's Adm'r v. Johnston, 72 Ala. 254, 47 Am.Rep. 405; Ex parte Lyon, 60 Ala. 650; Clark v. Knox, 70 Ala. 607, 45 Am.Rep. 93.
In the case at bar all of the persons interested in the estate, which includes all beneficiaries and both coexecutors, are before the court, with full opportunity to protect their respective rights. Where this is the situation, no representation of the estate by an administrator ad litem is required. Taylor v. Fulghum, 206 Ala. 219, 89 So. 702; Ex parte Baker, 118 Ala. 185; 23 So. 996; Faulk v. Money, 236 Ala. 69, 181 So. 256. And in such situation the expense occasioned by such appointment should not be incurred. Ex parte Baker, supra.
But it is earnestly insisted that Mrs. Riley and Mrs. Mudd should not be required to defend against an effort on the part of the coexecutor, Edward Wilkinson, Jr., to cancel the McCall-Mudd contract, when such coexecutor is not disinterested, but is motivated by a desire to save the securities he loaned his sister, as alleged in their motion. We do not take this view of the matter. The purpose of the petition to cancel the Mudd-McCall contract must necessarily first be to recapture the stock for the estate. We do not think that the effort so to recapture the stock for the estate should be clouded by what may be attempted, in the event the stock is recaptured. That can be considered and passed upon if and when the attempt is made to secure the stock from the estate.
Besides, at this stage of the case, we are not sure that the interest of Edward Wilkinson, Jr., is adverse to the estate. If it is, it is so remote and contingent upon unsettled conditions as not to be significant at this time. There is no allegation in the motion that the Collector's sale was fraudulent. It is averred to be void. It may be that even though Mrs. Lanier would not be entitled to thirty-four shares of stock, she would be entitled to reimbursement for the amount paid by her to the Collector under principles expressed in Anniston Pipe Works v. Williams, 106 Ala. 324, 18 So. 111, or to subrogation under principles expressed in Schuessler v. Shelnutt, 233 Ala. 188, 171 So. 259. See also Taylor v. Fulghum, supra. If any one of Mrs. Lanier's claims, viz., either the claim to thirty-four shares of stock, the claim to reimbursement or the claim to subrogation, is valid, then Edward Wilkinson, Jr., as coexecutor, should acknowledge the claim, not dispute it, for an executor should not dispute a meritorious claim. 34 C.J.S., Executors and Administrators, § 439, p. 259. We do not mean to intimate in any way that we think that Mrs. Lanier has any valid claim against the estate. Any such question will be passed on if and when such question is presented. What we do mean to say is that we are not so satisfied at this time that the interests of Edward Wilkinson, Jr., are adverse to the estate as to require the appointment of an administrator ad litem.
Then, too, at this stage of the case we are uncertain as to whether or not Mrs. Lanier is unable to pay the amount borrowed by her, as alleged in the motion. There is not a sufficient showing of the liabilities and assets of Mrs. Lanier for the court to form a belief as to the value of her estate. If Mrs. Lanier is able to pay her debt, then the danger to the securities which Edward Wilkinson, Jr., loaned her, is not apparent.
Nor do we mean to intimate that we have any opinion as to whether or not the Mudd-McCall contract is subject to cancellation or should be cancelled. We will pass on any such questions if and when the questions are presented. What we do mean to say is that on such a hearing an administrator ad litem need not be appointed. This is peculiarly true in the present instance. One executor, Bethea McCall, obviously supports the execution of the contract for the sale of 151 shares of stock in Western Grain Company to Mrs. Marguerite Mudd, while the other executor, Edward Wilkinson, Jr., opposes such contract. With one executor on one side of the question and one on the other, the court should certainly receive full information as to whether or not the contract can or should be given force and effect.
The court was not in error in granting the motion to strike the motion for the appointment of an administrator ad litem.
This brings us to a consideration of plea in abatement No. 5, filed by Mrs. Mudd and adopted by Mrs. Riley. Where the authority of the attorney to appear for a party to the cause is questioned, we have held that the authority can be challenged by plea in abatement. Caples v. Nazareth Church of Hopewell Ass'n, 245 Ala. 656, 18 So.2d 383; Blount v. Sixteenth St. Baptist Church, 206 Ala. 423, 90 So. 602; Mitchell v. Church of Christ at Mt. Olive, 219 Ala. 322, 122 So. 341. And we have said in effect that such authority must be challenged at the earliest opportunity. Mitchell v. Church of Christ at Mt. Olive, supra. While Mrs. Mudd filed a demurrer to the petition of February 5, 1944, before filing her plea in abatement, Mrs. Riley did not and so we proceed with the discussion.
Analysis of the plea in abatement shows that it is based on two sets of allegations: (1) Allegations seeking to show the pecuniary adverse interest of Edward Wilkinson, Jr., growing out of the loan of his securities to Mrs. Lanier to enable her to make good her bid at the collector's sale and the resulting interest of Edward Wilkinson, Jr., in her claim against the estate; and (2) allegations seeking to show that Messrs. Bradley, Baldwin, All White are not competent as attorneys to file the petition of February 5, 1944, because of alleged conflicting interest growing out of their alleged interest in establishing the claim of Mrs. Lanier against the estate. Of the requirements of a plea this court has said:
"The essential nature and requirement of a plea at law or in equity is that it shall completely answer the bill, at least to the extent that it purports to be a defense; and therefore, if any material allegation is not negatived by a traverse or confession and avoidance, it is necessarily taken as true in considering the plea, and will render it bad. 16 Cyc. 288; McKay, etc., v. Southern Bell Tel. Co., 111 Ala. [337], 351, 19 So. 695, 31 L.R.A. 589, 56 Am.St.Rep. 59. 'The averments of a plea must be certain, precise, and such as are necessary to avoid all ambiguity of meaning and exclude all intendments. * * * If we allow the averment to be true, but at the same time a case may be supposed consistent with it which would render the averment inoperative as a full defense, such a case will be presumed or intended, unless excluded by particular averments.' Whitlock v. Fiske, 3 Edw. Ch., N.Y., 131. The matter in the plea must be a complete bar to the equity in the bill." Scharfenburg v. Town of New Decatur, 155 Ala. 651, 654, 655, 47 So. 95, 96.
It is obvious that what we have said with reference to the adverse interest of Edward Wilkinson, Jr., in connection with the motion for an administrator ad litem, is equally applicable here. If it is not plain that the interest of Edward Wilkinson, Jr., is adverse to the estate, then we do not see how his authority to employ attorneys of his own choice can be assailed. Strumpf v. Wiles, 235 Ala. 317, 179 So. 201. According to the plea, the attorneys occupy the same relation to the estate and to the heirs of the decedent as does Edward Wilkinson, Jr. It is not clear to us that we should put Judge Harris in error for striking the plea in abatement of Mrs. Mudd and Mrs. Riley, and we agree with him that the cause should proceed to direct hearing of the petition of February 5, 1944.
The writ is denied in each of the causes here consolidated.
Writ denied.
All the Justices concur.