Whaley v. Rothschild & Co.

McCLELLAN, J. W. H. Whaley died May 31, 1911, leaving a last will and testament, which was regularly probated. Therein Mamie C. Whaley was named as executrix thereof, and to her letters testamentary were duly issued. • By the terms of the instrument she is made the chief beneficiary. It is also provided therein that no bond should be required of her, nor shall an account [71] ing be exacted of her, in the disposition or mangement of the estate. This bill is exhibited by creditors of the estate of W. H. Whaley, deceased, for debts created by him in his lifetime, and seeks the removal of the administration of the estate from the probate into the chancery court, the discovery of assets of the estate of their debtor, the injunction of Mamie C. Whaley and others from further disposing of or handling assets of the estate of the debtor, and other consistent relief. The appeal is from a decree overruling demurrers to the bill. The probate of the will and the issuance of letters testamentary to Mrs. Whaley demonstrates, conclusively, that jurisdiction of the administration had been, before this bill was filed, regularly assumed by the probate court of Houston county. Of that there cannot be doubt. Creditors of the decedent are entitled to have their demands satisfied out of the estate of the debtor, and no restrictive provision incorporated by the debtor in his will can postpone or avoid the right of his creditors. That they may maintain a bill of the character before us was expressly held in Rensford v. Magnus & Co., 150 Ala. 288, 43 South. 853. And such a bill is not affected by the statutory provision postponing suits whereby liability is sought to be fixed against the estate. — St. John v. St. John, 150 Ala. 237, 240, 43 South. 580, among others. The discovery the bill seeks of the executrix is but an incident, though absolutely necessary, to the proper and adequate administration of the estate in respect of the satisfaction thereby of the demands held by the complainants. No inventory had been made by the executrix, and the bill avers that assets of the estate had been disposed of or used by the executrix. The demurrer was properly overruled. The decree, so adjudging, is affirmed. Affirmed. All the Justices concur.