Opinion
8 Div. 444.
March 23, 1933. Rehearing Denied April 20, 1933.
Appeal from Circuit Court, Morgan County; W. W. Callahan, Judge.
Seybourn H. Lynne and Lynne Lynne, all of Decatur, for appellant.
A bill cannot be filed to take into a court of chancery jurisdiction over a controversy of a legal nature without a verification of such facts as show its propriety. Township of Lebanon v. Burch, 78 Mich. 641, 44 N.W. 148; Kelen v. Brewer, 221 Ala. 445, 129 So. 23; 4 Standard Ency. Proc. 148. Verification should be construed against the pleader. Petchey v. Allendale Land Co., 216 Ala. 167, 112 So. 818. The purported verification to this bill, on information and belief, is the equivalent of no verification. Burgess Co. v. Martin, 111 Ala. 656, 20 So. 506. If the main purpose of the bill be held to be the collection of complainant's debt, the demurrer should have been sustained on the theory complainant has an adequate remedy at law. The bill should go further and aver want of personal assets, insolvency of personal representative, etc. Scott v. Ware, 64 Ala. 174.
A. J. Harris and E. W. Godbey, both of Decatur, for appellee.
Equity is the court of primary jurisdiction, and creditors have the primary interest in an administration and may have the estate administered in chancery without assigning any reason. Rensford v. Magnus Co., 150 Ala. 288, 43 So. 853, 854; Pratt v. Northam, Fed. Cas. No. 11,376, 5 Mason, 95; Jones v. Dougherty, 10 Ga. 273; Ligon v. Ligon, 105 Ala. 460, 17 So. 89, 91; Gould v. Hayes, 19 Ala. 450. The affidavit to the bill that complainant is a judgment creditor is all the verification that could be made; that is the only jurisdictional fact.
A creditor of an estate whose administration is pending in the probate court may, at any time before jurisdiction for final settlement in the probate court has attached, invoke the general jurisdiction of the court of equity for the further administration and settlement of the estate by bill in equity without alleging any special equity. Rensford v. Magnus Co., 150 Ala. 288, 43 So. 853; Carter v. Hutchens, 221 Ala. 370, 129 So. 8.
Under general rules touching the removal of causes from one court of competent jurisdiction to another, such a bill should be verified as to the facts on which the right of removal depends. Kelen v. Brewer, 221 Ala. 445, 129 So. 23, 26; 21 C. J. page 368, § 378.
The bill in this cause was verified by affidavit of complainant clearly deposing that she is a creditor of the estate; indeed, a judgment creditor.
The right of removal by original bill, in such case, is matter of right; does not depend on averment or proof that the estate can be better administered in equity. Hence, the further statement of affiant that she believed this to be true, as in a statutory petition for removal did not detract from the sufficiency of the verification.
Affirmed.
ANDERSON, C. J., and GARDNER and FOSTER, JJ., concur.