Horton v. Moseley , 17 Ala. 794 ( 1850 )

PARSONS, J.

The Orphans’ Court has jurisdiction to settle the accounts of executors and administrators, and to render a final decree for the amount ascertained to be in their hands, in favor of the distributees or those entitled to it, and also to allot to each his proper share thereof. Therefore, when a suit or a proceeding is commenced in the Orphans’ Court for the final settlement of an estate, a court of equity will not interfere and arrest the Orphans’ Court in the exercise of its legitimate jurisdiction, unless some specific fact or circumstance be alleged, which shows that the Orphans’ Court, from the limited character of its jurisdiction, is incompetent to do complete justice, or that owing to its mode of proceeding, the facts cannot be fully brought by evidence to the view of the court. Thus an executor may have defences purely of an equitable character, which the Orphans’ Court could not allow. In such cases he must go into a court of equity or lose the benefit of them. Again, a discovery from the parties in interest may be indispensable, in order to establish his defence, which cannot be fully and completely obtained without a bill for discovery. In such cases equity must interfere to prevent a failure of justice. Nor is the jurisdiction of a court'of equity taken away because one party, wishing a discovery from the opposite party, can-, under our statute, file interrogatories and4 compel an answer to them. — Mallory v. Matlock, 10 Ala. 727.

It, therefore, follows that"a court of equity may restrain the • Orphans’ Court from proceeding to a final settlement, when it is necessary that matters of purely equitable cognizance must be adjudicated and ascertained, in order to reach the ends of justice, and also, when it is necessary to have a discovery.-from the-opposite party, in order to establish facts, which otherwise could not be proved.

The bill, however, in this case does not contain either of those requisites. No equitable ground of defence, of which the Orphans’ Court has not jurisdiction, is pretended to be alleged, and we think it eutirely defective as a bill of discovery merely. The general rule in regard to bills' of this nature, is that it must set forth the particular matters, in reference to which the discovery is sought, (Story’s Eq. Pl, 325, Lucas v. The Bank of Darien, 2 Stew. 280,) and these matters should be alleged with sufficient certainty. It should.also be shown that the answer of the defendant is essential to a complete defence, and that he is capable of giving the discovery sought. If a bill for discovery does not contain these requisites, it is demurrable. — Story’s Eq. Vol. 1, 91. Testing this bill by these rules, it is clear that it is defective. It does not appear that Moseley, the administrator of-William Horton, knows of the payments made by the. complainant as administrator, or that he is capable of giving any discovery in reference to them; nor would the answer.of his co-defend - ant be evidence against him. The complainant has, therefore,failed to show that the discovery that could be made, if, indeed,he has shown that any could be, would be of any avail to him,- and consequently his bill was properly dismissed.