Ex Parte Kelly

We are not of opinion that Act No. 633, approved July 10th, 1940, conferring on "the Probate Courts in all counties of this State which now have or may hereafter have a population of 400,000 or more, according to the last or any subsequent Federal census * * * general equity jurisdiction concurrent with that of the Circuit Courts, in equity * * * in the administration of the estates of deceased persons, minors and insane persons, including testamentary trust estates" is unconstitutional. Act No. 633, approved July 10, 1940, Acts 1939, p. 1000 and 1001. See supplement to Code of 1940, Title 62, § 181 (1) miscellaneous laws applicable to Jefferson County.

In the enactment of this statute the legislature was well within its plenary powers. Constitution of 1901, § 139. As observed by this court, speaking through Brickell, Chief Justice, in State ex rel. Winter v. Sayre, 118 Ala. 1,24 So. 89, 90, the clause "and such persons as may be by law invested with powers of a judicial nature" was introduced into the Constitution to insure the right of the General Assembly to confer powers essentially of a judicial nature on other than judicial officers. This clause first appeared in the Constitution of 1868, and was carried into the Constitution of 1875 as Art. IV, § 11, and since the decision in State ex rel. Winter v. Sayre, supra, has been readopted in the Constitution of 1901, with its interpretation in the Winter case supra, and this interpretation has been repeatedly reaffirmed in many cases since. Notably, State ex rel. Ham v. Brock, Clerk, 180 Ala. 505, 61 So. 646; State ex rel. Vandiver v. Burke, Judge, 175 Ala. 561, 57 So. 870: Ex parte Pruitt,207 Ala. 261, 92 So. 426; In re Opinions of Justices, 209 Ala. 593,96 So. 487.

The scope of the equity jurisdiction conferred is not as broad as that of the circuit court, but is full jurisdiction to determine, in general, every equitable question arising in connection with decedents' and wards' estates, so far as the question concerns any person before the court by reason of any right in, or obligation to, such estates or trusts. 21 Corpus Juris Secundum, Courts, § 302, p. 544.

In Rensford v. Joseph A. Magnus Co., 150 Ala. 288,43 So. 853, it was observed:

"The jurisdiction of the chancery court over the administration and settlement of estates of deceased persons is original and general. (Citing authorities.) * * * Moreover, this doctrine of the concurrent jurisdiction of the chancery court with the probate court in the administration of estates is recognized in the Constitution of 1901 of this state. Section 149. * * *

" 'The chancery court retains its original jurisdiction over the subject of administration, and may be appealed to by any interested party, other than the personal representative, without the assignment of any special reason, at any time before the concurrent jurisdiction of the probate court has attached by the institution in that court of proceedings having substantially the same object. If such proceedings have commenced in the probate court, or if the power of the chancery court be invoked by the personal representative, then some special equitable reason must be assigned to give the chancery court jurisdiction.' * * *." (Parenthesis supplied.)

This rule in so far as it required the assignment of equitable ground for removal by the personal representative has been modified by statute. Code 1940, T. 13, § 139.

We are further of opinion that when the petition for the appointment of an administrator was filed in the probate court, and that court assumed jurisdiction, appointing the administrator, this constituted it a pending administration subject to removal to the court of equity, notwithstanding there was an appeal from the order of the probate court appointing the administrator. The effect of the removal and appeal was to give the circuit court jurisdiction of the entire proceeding. Constitution of 1901, § 149.

The effect of the decree appealed from — remanding the administration of the estate to the probate court — was to put this branch of the case out of the circuit court, and was such final decree as will support the appeal. Bailey v. Southern Railway Co., 215 Ala. 677, 112 So. 203. That decree was laid in error and must be reversed.

The petition for writ of prohibition is granted, restraining the probate court from further proceeding in respect to the cancellation of the lease. The merit of that proceeding is a matter for consideration of the circuit court.

Writ of prohibition granted.

Reversed and remanded.

GARDNER, C. J., and BOULDIN, FOSTER, and LIVINGSTON, JJ., concur.

THOMAS, J., dissents as indicated in his opinion which follows.

KNIGHT, J., not participating.