Shackelford v. Bankhead

SOMERVILLE, J. Where the jurisdiction of the Probate Court has attached, and commenced to Toe exercised in the settlement of the estate of a decedent, the Chancery Court will not, even on the application of a distributee, or other party beneficially interested, assume jurisdiction by removal of the administration into the forum of equity, unless it be shown that some question of special equitable cognizance is involved, which the Probate Court is incompetent to determine. Nor can such administration be removed into the Chancery Court, i/ncmy case, or at a/ny time, by the personal representatime, without the assignment of some particular ground of equitable jurisdiction. This rule may now be considered as firmly settled by the decisions of this court.—Newsom v. Thornton, 66 Ala. 311; Maybury v. Grady, 67 Ala. 147; Whorton v. Moragne, 59 Ala. 641; Teague v. Corbitt, 57 Ala. 529. One of the most signal modes by which this active exercise of probate jurisdiction is manifested, is the declaration, by that court, of the insolmency of the estate. Where this has been done, it requires a clear and strong case to justify removal. As said in Clark v. Eubank (65 Ala. 245, 247), “ When an estate is declared insolvent, there is an eminent fitness in having the settlement finished in the Probate Court, unless there is involved in it some question of exclusive equitable cognizance, which the Probate Court, by reason of its limited powers, isin479 competent to adjudicate. Moreover, by the act of declaring an estate insolvent, the Probate Court acquires jurisdiction of the settlement, which precludes all interference by the Chancery Court, unless a special equity is shown.”—Moore v. Winston’s Adm’r, 66 Ala. 296; Watts v. Gcuyle, 20 Ala. 817. There is, in our opinion, no doubt whatever about the correctness of this principle.—Prince v. Prince, 47 Ala. 283; 1st Brick. Dig. 647, § 120. It is obvious that the rule above announced must prove fatal to the general equity of the present bill, apart from the particular equity of discovery, to which we will hereafter advert. The summary of all the charges made against the defendants, as administrators of Garth’s estate, is that they have omitted to make any settlement of the estate, and have converted to their own use, or otherwise become liable for a vast amount of personal assets, for the value of which they are legally chargeable; and that much of this property has been omitted from the inventory, where it should properly have appeared. No reason is assigned why these acts of mal-administration and of official devastavit can not be fully redressed by the Probate Court, whose powers are entirely adequate for the purpose.—Clark v. Eubank, 65 Ala. 245, supra; Weakly v. Gurley, 60 Ala. 379. The bill is defective in its allegations as one framed for discovery, in aid of the relief prayed. "Where a bill is filed, not for discovery alone, but also for relief, and seeks to withdraw from the jurisdiction of any law court a matter of strictly legal cognizance, it must be shown that the discovery sought is indispensable to the ends of justice — or, in other words, that the facts, as to which the discovery is sought, can not be otherwise proved than by the defendant’s answer.—Continental Life Ins. Co. v. Webb, 54 Ala. 689, 697; Horton v. Mosely, 17 Ala. 794; 1 Brick. Dig. 714, § 1067. The bill must, also, aver' the existence and materiality of such facts with sufficient certainty, and show that the defendant is capable of making the discovery. Horton v. Mosely, supra; Story’s Eq. Pl. 325; Lucas v. Bank of Darien, 2 Stew. 280; Guice v. Parker, 46 Ala. 616. It is quite clear, however, that this well established jurisdiction of equity in matters of discovery is not ousted, or in any wise affected, by the statutory changes in the common-law rules of evidence, by which parties to pending suits are authorized to be examined as witnesses in the courts of this State. Cannon v. McNab, 48 Ala. 99. The bill, when tested by the above requirements, is defective. It fails to aver with sufficient certainty that the facts, as to which the discovery is sought, can not be proved in any other manner than by the answer of the defendants. The averment made as to some of these facts — that the complainants have no [480] other “ means of T&nowing them ” — is insufficient; and others are of such a nature as that, presumptively at least, the transactions involving them may be within the cognizance of witnesses. If this be otherwise, the bill should clearly show it by affirmative allegations, free from all ambiguity of meaning. These are amendable defects, however, and it was error for the chancellor to dismiss the bill in vacation, without first affording the complainants an opportunity to make the required amendments. This was so ruled in Kingsbury v. Milner (69 Ala. 502), a case which has been since several times followed. In term time, where the opportunity to amend is presented, the right must be claimed by the party entitled; and it has often been held that the chancellor can be put in error, only where the record shows a denial of this right, on application made in accordance with the rules of practice prevailing in a court of equity, and regulating amendments. A mere dismissal, without such denial, would be, in such cases, no ground for reversal in the appellate court.—Little v. Snedicor, 52 Ala. 167; Bishop v. Wood, 59 Ala. 253; Brock v. S. & N. Ala. Railroad Co., 65 Ala. 79. The decree of the chancellor must be reversed, and the cause remanded, in order that the bill may be amended, if it is so desired by the appellants.