Opinion
1 Div. 17.
June 6, 1918.
Appeal from Circuit Court, Washington County; Ben D. Turner, Judge.
Joe M. Pelham, Jr., of Chatom, and Armbrecht, McMillan Caffey, of Mobile, for appellant. Granade Granade, of Chatom, for appellee.
We are of the opinion that what was said by this court on the former appeal in this cause, considering the demurrer to the original bill is also decisive of the present appeal. It appears now, as it did then, from the exhibits to the bill, that the complainant as administrator petitioned the probate court for a final settlement of the affairs of said estate and his administration thereof. The jurisdiction of the probate court was thereby called into exercise, resulting in a final judgment of said court against the complainant. It also appears now, as it did then, that the matters of credit which he seeks to have reopened and allowed were the subject of contest in the probate court, and were by that court disallowed.
While the bill does seek a removal of the administration of the estate into the chancery court, yet, of course, the principal object of the bill, reduced to its last analysis, is to have the final decree of the probate court, upon his accounting and settlement of his administration, set aside and reopened in order that he may be permitted to receive certain credits for advancements to the widow and minor children, which he is of the opinion would be allowed in a court of equity, although properly disallowed in the probate court because of noncompliance with the statutory provisions in regard thereto. Reference is made in the former opinion to that phase of the bill. Answer is found in the opinion on the former appeal to the averment as to the complainant being advised that in fact there was not a final settlement of the estate. Reference is also made to the fact that the agreement referred to could not be held of binding force so as to hold the estate together in view of the fact that a number of the heirs were minors, "and hence incapable in their own right of binding themselves by such an agreement." The amendment to the bill amending paragraphs 5 and 6, as indicated in the statement of the case, amounts after all to but an enlargement or more detailed statement of what appeared in a more summary manner in the original bill.
The case of Spidle v. Blakeney, 151 Ala. 194, 44 So. 62, is cited, among other authorities, by appellant. In the Spidle Case the guardian was allowed reimbursement in a court of equity for necessary expenditures made out of his own funds in behalf of the best interest of his ward, without prior order from the probate court. It is to be noted, however, in that case the guardian made timely application for relief in a court of equity before a final settlement of the guardianship, and it was held that the facts there alleged constituted a special equity for the removal of the settlement into the chancery court. In the instant case the administrator made no such timely appeal to a court of equity, but filed his application for a final settlement of his administration, and the probate court entertained jurisdiction of such final settlement. A contest was had in the probate court, and a final decree entered against such administrator, who was thereby discharged. The proceedings in the probate court, as shown by this record, and the final decree of said court, appear to be in all respects regular. The decree there rendered is therefore binding and conclusive upon the administrator for aught appearing in the bill as amended. Adams v. Walsh, 190 Ala. 516, 67 So. 432, and authorities there cited. As to whether or not the administrator could have obtained relief in a court of equity upon the facts alleged in the bill as amended, had he made application to such court before a final decree was rendered in the probate court on a final settlement of his administration — had upon his petition therefor — need not be determined, as the question is not here presented.
It appears quite clear that the bill is insufficient as one to have set aside and reopened said final decree. It results as our conclusion that the demurrer to the bill as amended was properly sustained, and the decree of the court below is accordingly affirmed.
Affirmed.
ANDERSON, C. J., and McCLELLAN and SAYRE, JJ., concur.