Clements v. Clements

ANDERSON, C. J.

[1, 2]

As we understand the bill in question, it presents a contest between the alleged legitimate wife and children of Jesse J. Clements, alias J. N. Clements, deceased, and the bigamous wife and illegitimate children of said Clements, and seeks to subject certain money in the hands of the register as part of the proceeds of the sale of lands belonging to the estate of said decedent and to intercept said fund before it falls into the hands of an innocent party. The bill does not seek to set aside the decree of sale, or to vacate said sale, but only seeks to subject so much of the proceeds of same as is now under the control of the chancery court, thus, in effect, ratifying the sale and the title acquired thereunder by the purchaser, Faulk. Nor can these respondents complain that the complainants prefer subjecting the proceeds instead of trying to recover the land, or that they ask for only so much of the proceeds as has not heretofore been paid out. Neither can they complain of a misjoinder of parties complainant because the alleged legal widow of Clements is made a party complainant, as she is at least a proper, if not a necessary, party, and the chancery court can, decree a proper distribution between her and the other complainants in ease of a recovery, as she has a marital right in the fund sought, whether it be treated and distributed under the law governing the descent and distribution of real estate or personalty. Therefore, if the bill did not disclose other material facts hereinafter discussed, it would not be subject to the respondent’s demurrer. Evans v. Evans, 76 South. 95 , ante, p. 329, and many cases there cited.

[3, 41 The bill however has attached thereto certain exhibits and which must be treated as a part of said bill upon demurrer. Hogan v. Scott, 186 Ala. 310 , 65 South. 209 . These exhibits disclose the fact that the estate of said Clements was duly administered in the probate court of Geneva county; that th« estate was finally settled, and that the land sold by the chancery court for distribution between the joint owners, and the proceeds of which are now sought, was set apart by an order or decree of said court as dower and homestead to the respondent widow and her minor children. This was a judicial ascertainment by said court that the respondents were the legal widow and children of said Clements and entitled to the property in question, and relief cannot be awarded the present complainants except by vacating and impeaching said judgment or decree of the *530 probate court. From aught that appears, these complainants may have known of the administration of the estate in the probate court and not only had an opportunity to contest and resist the decree there rendered but may have, in fact, done so. Or if they did not know of said administration until after the decree, there is no averment as to when the facts were discovered or otherwise relieving them from laches in filing this bill nearly eight years thereafter, and the bill was subject to the respondents’ demurrer proceeding upon that theory and which was properly sustained. Adams v. Walsh, 190 Ala. 516 , 67 South. 432 ; Otis v. Dargan, 53 Ala. 178 ; Hall v. Pegram, 85 Ala. 522 ;

1

Evans’ Case, supra; Robertson v. Walker, 51 Ala. 484 ; Vincent v. Martin, 79 Ala. 540 .

[5]

It is tr.ue the authorities supra apply generally to bills filed under section 3914 of the Code to correct settlements of the probate court, or to bills of review, but they apply by way of analogy to the present bill which is commonly called “an original bill in the nature of a bill for review.” Hogan v. Scott, supra, McDonald v. Pearson, 114 Ala. 630 , 21 South. 534 , but unlike a bill of review may be filed without leave of the court.

The decree of the chancery court is affirmed.

Affirmed.

MAYFIELD, SOMERVILLE, and THOMAS, JJ., concur.

1

5 South. 209 , 6 South. 612 .