Opinion
3 Div. 948.
May 28, 1931.
Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.
John B. Scott, of Montgomery, for appellant.
The probate court having first acquired jurisdiction of the subject-matter, it cannot be deprived of such jurisdiction except by the removal of the estate to the chancery court as provided by statute. Code 1923, § 6478; Kirkbride v. Kelly, 167 Ala. 572, 52 So. 660. See Martin v. Ellerbe, 70 Ala. 326; Dennis v. Prather, 212 Ala. 449, 103 So. 59; Const. 1901, § 149; Code 1923, § 5465. The executor has no power to execute a mortgage on the property of the estate unless given by the will or authorized by statute. Kirkbride v. Kelly, supra; 1 Jones on Mortgages (7th Ed.) 128; 24 C. J. 193, 195; Teague v. Corbitt, 57 Ala. 529; Chighizola v. Le Baron, 21 Ala. 406; Steele v. Steele, 64 Ala. 438, 38 Am. Rep. 15.
W. M. Blakey, of Montgomery, for appellees.
There is no question of the authority of the chancery court to instruct an executor as to the management of the estate. Jordan v. Hardie, 131 Ala. 72, 31 So. 504; Trotter v. Blocker, 6 Port. (Ala.) 269. The executor, under a bill like that here involved is nothing more than a trustee, who is directed to hold the property together for a long period of time, and there is no reason why the court should not be able to authorize such a trustee to execute a mortgage as fully as it could authorize any other trustee to do so. Creamer v. Holbrook, 99 Ala. 52, 11 So. 830; 39 Cyc. 382; 28 A. E. Ency. L. 1009. It was not necessary to include in the bill a special petition for removal of the estate from the probate court; the taking of jurisdiction of the estate by the chancery court for any purpose would be sufficient to authorize the court to proceed with the administration of the estate for the purpose sought. Jordan v. Hardie, supra; Trotter v. Blocker, supra; Wilson v. Crook, 17 Ala. 59; Hurt v. Hurt, 157 Ala. 126, 47 So. 260.
Generally an executor of an estate cannot mortgage the property of his testator unless given the power to do so by the terms of the will or by a statute. Jones on Mortgages (8th Ed.) § 132; Kirkbride v. Kelly, 167 Ala. 573, 52 So. 660.
The present will, however, while not giving the executor power to sell or mortgage the real estate, does more than give executorial power, as it creates a trust for the use and benefit of the named beneficiaries, and enjoins upon the executor the duty of keeping the estate together and the management and control thereof for a period of years, that is, until the youngest child reaches maturity. Creamer v. Holbrook, 99 Ala. 52, 11 So. 830. The supervision of the administration of trusts is a well-recognized ground of equity jurisdiction, 26 R. C. L. § 133, and resort must be had for this purpose to a court of equity, the probate court having no jurisdiction over said trust. Creamer v. Holbrook, supra.
While the authorities are not entirely harmonious, it seems settled by the weight that a court of equity will authorize a trustee to mortgage the trust property when necessary to discharge existing debts or incumbrances and when to do so is essential to a continuation of the trust or the carrying out of the purpose of same, or, in some instances, for the improvement of the trust property, especially when it enhances the value thereof and increases the income from same. 26 R. C. L. page 1303, § 156; Lueft v. Lueft, 129 Wis. 534, 109 N.W. 652, 7 L.R.A. (N.S.) 263, 9 Ann. Cas. 639, and note on page 643.
The record discloses that the estate owes a good deal more than the personal property can pay, and, of course, the real estate would have to be sold under the statute to pay said debts and would result in whole or in part in defeating the purpose of the trust of keeping the property until the youngest child becomes of age. It is also shown that by replacing the building destroyed by fire and improving the property the income therefrom will be increased. Therefore, by procuring a long time loan on the property, the trust, instead of being defeated or partially destroyed, may be carried out.
We are of the opinion, however, that as the administration of this estate is pending in the probate court, and notwithstanding the bill of complaint sets up a cause for equitable jurisdiction, it should also seek a removal of the administration of the estate to the chancery court as a condition precedent to the relief sought. In other words, as the chancery court is to assume jurisdiction as to the administration of the estate in part, it should take charge of the whole matter.
We also suggest that the decree discloses that the trial court has been most generous, if not lavish, in the allowance of counsel fees for the mere procurement of a right to mortgage some of the property. Courts of equity should guard and protect the interest of its infant wards with scrupulous care.
The decree of the circuit court is reversed, and the cause is remanded.
Reversed and remanded.
SAYRE, THOMAS, and BROWN, JJ., concur.