Summary
In Pierce v. Barbaree, 238 Ala. 676, 678, 193 So. 115, 116, it is declared: "The right of removal of administration of estates from the probate court to a court of equity is stated in §§ 6478 and 8102 of Michie's Code [Code 1940, Tit. 13, § 139; Tit. 21, § 26].
Summary of this case from Gardner v. GardnerOpinion
4 Div. 91.
December 21, 1939. Rehearing Denied January 25, 1940.
Appeal from Circuit Court, Pike County; W. L. Parks, Judge.
Ewell C. Orme, of Troy, for appellant.
The relief sought may be obtained in the due course of administering the estate, now pending and undetermined in the same court, and the bill is without equity as its practical effect is to supersede and take the place of the administration of the estate and to render useless that proceeding. Hopkins v. Crews, 220 Ala. 149, 124 So. 202. Pending administration, where there are debts against the estate, the law confers on the administrator the right to possession of real estate and, if need be, the right to cause its sale for payment of debts, with consequent divestiture of title out of the heirs. Snodgrass v. Snodgrass, 176 Ala. 160, 57 So. 474; Hopkins v. Crews, supra. Whether necessity exists for such sale, or whether personal property is sufficient for payment of debts, are questions properly determinable only in proceedings removing the administration into the court of equity — the administration proceedings. Forman v. McAnear, 219 Ala. 157, 121 So. 538; Hopkins v. Crews, supra. Nor can the heirs have a sale for division pending the paramount rights of the widow to quarantine, dower and homestead. Hamby v. Hamby, 165 Ala. 171, 51 So. 732, 138 Am.St.Rep. 23. Nor can the widow's dower interest in lands be disposed of by sale for division without her written consent. Clancy v. Stephens, 92 Ala. 577, 9 So. 522, 524; Boyles v. Wallace, 208 Ala. 213, 93 So. 908. The heirs have the right in administration proceedings to invoke the power of the court to have dower assigned and exemptions of the widow set apart to her until dower is assigned, and the widow's right of quarantine continues. Callahan v. Nelson, 128 Ala. 671, 29 So. 555; Castleberry v. Hollingsworth, 215 Ala. 445, 111 So. 35; Hopkins v. Crews, supra.
M. Sollie, of Ozark, for appellee.
All matters of relief sought are proper and necessary to complete administration of the estate. Howell v. Ward, 230 Ala. 379, 161 So. 487.
The appeal is from decree overruling demurrer to the bill.
The right of removal of administration of estates from the probate court to a court of equity is stated in §§ 6478 and 8102 of Michie's Code. The change in the statute, from Acts of 1911, p. 574, to that of the Act of 1915, p. 738, was first indicated in Dent v. Foy et al., 204 Ala. 404, 85 So. 709, and later in Irwin v. Irwin, 227 Ala. 140, 148 So. 846.
The jurisdiction of a court of equity as to the right of assignment of dower and homestead was stated in Yarbrough v. Yarbrough, 200 Ala. 184, 75 So. 932.
The bill was filed by the personal representative and distributee of decedent's estate for discovery against the widow, seeking assignment of homestead and dower in property worth more than the right of homestead, and in property not susceptible for division and assignment of homestead, and for cancellation of conveyance of a part of decedent's real properties.
For foregoing reasons, demurrer was overruled to the bill when the right of removal was conferred by statute, and independent equity was shown under the averments of the bill.
The case of Hopkins v. Crews, 220 Ala. 149, 124 So. 202, does not control, under the averments of facts contained in the bill and prayer for relief.
The decree of the circuit court is affirmed.
Affirmed.
ANDERSON, C. J., and BOULDIN and BROWN, JJ., concur.