Keith v. McCord

TYSON, J. The bill in this cause is filed by John H. McCord, as administrator de bonis non of the estate of Mary J. Kyle, deceased, who was an heir at law of one Wm. H. Robinson, deceased, against the sureties on the administration bond of W. J. Robinson, deceased. It is shown by the bill that Wm. H. Robinson died intestate in 1884, leaving as his heirs at law and distrub-tees, Mary J. Kyle, a sister, and Mary J. Stone and W. J. Robinson, children of a deceased brother. Mary J. Kyle died intestate in 1884, and complainant is tbie administrator de bonis non of her estate. Mary J. Stone died intestate in 1899, leaving a surviving husband and children. It is not shown whether there is an administrator of her estate. W. J. Robinson died intestate in 1902, without making a final settlement as administrator of the estate of Wm. H. Robinson, deceased. No administrator of his estate has ever been appointed. It is further shown that W. J. Robinson as administrator de bonis, non received assets of the estate of Wm. H. Robinson which he never accounted for. The purpose of the bill is to have a final settlement of his administration and to distribute these, assets among the distributees. The equity of the bill and the jurisdiction of the court invoked by it is not questioned. Nor is the right of the complainant as the personal representative of Mrs. Kyle, one of the distributees, to maintain the bill questioned. But if any of these matters were questioned it would be of no avail.—High’s Admr. v. Worley’s Admx. [406] 32 Ala. 709; Martin v. Ellerbe’s Admr., 70 Ala. 326; Woods v. Legg, 91 Ala. 511; Bromberg v. Bates, 98 Ala. 621. The first point presented is that the estate of Wm. H. Robinson which is sought to be settled and distributed should be represented by an administrator. This necessity is relieved by the averment in the bill that the administrator in chief “paid off and satisfied all the debts and liabilities of- the estate of his said’ intestate.” Baines v. Barnes, 64 Ala. 375, 381; Fretwell v. McLemore, 52 Ala. 124; Alexander v. Alexander, 70 Ala. 212; Glover v. Hill, 85 Ala. 41. Mrs. Stone having been paid her distributive share of the estate in full, it is unnecessary that her husband and 'children should be made parties, or that her estate be represented by an' administrator; Neither they nor her estate have any interest in the assets sought to be distributed. “It is- only persons who 'have a right or interest, legal or equitable, in the subject matter of the controversy, which may be affected by the decree, who can be made parties to a suit in equity. Persons as to whom no decree can be rendered on a hearing, ought not to be made parties.”—Jones v. Caldwell, 116 Ala. 367; Huckabee v. Swoope, 20 Ala. 491. It is also insisted that the estate of W. J. Robinson should be represented by an administrator. If he were living and stood in no other relation to the estate of Wm. H. Robinson than as administrator de bonis non he would not be a necessary party to this suit. Such a bill may well be maintained against his surety without his being made a party. This being true, of course, an administrator of his estate, if one had ever been appointed, is not a necessary party. Section 670 of the Code of 1896 provides: “When the plaintiff has a just demand, he may proceed against one or more of the parties thereto without joining the others.” In Teague v. Corbitt, 57 Ala. 529, this statute was held to be applicable to suits in equity and was applied in that case which was similar in character to this one. In Fulgham v. Bernstein, 77 Ala. 496, under this statute, an infant was permitted to maintain a bill for a settlement of her guardian’s ac [407] counts against the executrix of the last will and testament of a surety upon her guardian’s bond without joining the personal representative of her guardian. It is further insisted that his estate should be represented on account of his having been an heir at law of Wm. H. Bobinson and, therefore, entitled to a distributive share in the assets here sought to he administered. This is entirely correct. But in view of the fact that no administrator of his estate has ever been appointed, an administrator acl litem may be'appointed by the court in pursuance of the statute to represent his estate in this proceeding, and a decree may be rendered in favor of such administrator for his distributive share. — §§ 352 and 353 of the Code, and cases cited under § 352. The decree overruling the demurrers must he affirmed. Affirmed.