Summary
In Powell v. Labry, 207 Ala. 117, 92 So. 266, the bill as amended was held sufficient for removal of the administration into equity under General Acts 1915, p. 738; and it was there held that the construction of the will of W. F. Lyman would not be considered on that appeal from demurrer to the bill removing that administration.
Summary of this case from Powell v. LabryOpinion
6 Div. 546.
January 12, 1922.
Appeal from Circuit Court, Jefferson County; J. B. Aird, Judge.
Rudulph Smith, of Birmingham, for appellants.
Counsel discuss the various matters raised by their demurrers, but in view of the opinion it is not deemed necessary to here set them out.
R. C. Redus, of Birmingham, for appellee.
The bill was entirely sufficient for removal of the estate, and as that was the only order that could be made at that time, the court properly entered the order of removal. Acts 1915, p. 738; section 149, Constitution 1901; 206 Ala. 123, 89 So. 271; 87 Ala. 605, 6 So. 342.
The bill as amended stood with Mary Lyman Stone Labry as sole complainant. She is a daughter, heir at law, and distributee of the estate of Robert I. Stone, deceased, who was a devisee under the will of W. F. Lyman, deceased. It is averred that complainant is a devisee under the will of said Lyman, deceased; that she "is entitled to receive the share" of said Stone, her father (now deceased), under the will of said Lyman. It is also averred that the estate of Lyman may be better administered in a court of equity, the probate court not having made final settlement of the estate of said Lyman. The amended bill seeks the removal of the administration into the court of equity. It is entirely sufficient for that purpose. Gen. Acts 1915, pp. 738, 739, and numerous decisions applying its provisions.
At this stage, on appeal from ruling on demurrer to a sufficient bill for removal of the administration of an estate into equity, this court will not enter upon consideration of the construction of the will. Ashurst v. Ashurst, 175 Ala. 667, 670, 57 So. 442.
The court below correctly assumed jurisdiction under the averments of the amended bill, and cannot, at this stage, be held to have erred or not to have erred in overruling special grounds of demurrer.
Affirmed.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.