25 So. 694 (Ala. 1899), Campbell v. Weakley

Citation:25 So. 694, 121 Ala. 64
Opinion Judge:HARALSON, J.
Attorney:Tillman & Campbell, for appellants. E. H. Cabaniss, for appellee.
Case Date:April 11, 1899
Court:Supreme Court of Alabama

Page 694

25 So. 694 (Ala. 1899)

121 Ala. 64




Supreme Court of Alabama

April 11, 1899

Appeal from city court of Birmingham; W. W. Wilkerson, Judge.

Bill by Samuel D. Weakley, as administrator of the estate of Joseph P. Mudd, deceased, against E. K. Campbell, guardian ad litem for William A. Mudd and another, and others. From a decree overruling a demurrer to the bill, defendants appeal. Affirmed.

The bill in this case was filed on April 12, 1898, by the appellee, Samuel D. Weakley, as administrator of the estate of Joseph P. Mudd, deceased. It was averred in the bill that one Joseph P. Mudd died intestate on January 12, 1898, being a resident of Jefferson county, Ala., leaving property therein, and that the complainant was duly appointed and qualified as administrator of the estate of said Joseph P. Mudd, deceased; that complainant's intestate was a son of William S. Mudd, who died in Jefferson county, Ala., on September 2, 1884, being seised of a large estate of real and personal property, and leaving a last will and testament, which was attached as an exhibit to the bill. Said will was duly admitted to probate and letters testamentary were issued to Mortimer H. Jordan, William A. Walker, Hardin P. Cochran and Joseph P. Mudd, as executors; that M. H. Jordan died in the year 1881, and that H. P. Cochran resigned his executorship and never took any part in the management of the trust; that said William S. Mudd left surviving him four daughters and one son, Joseph P. Mudd, and certain grandchildren, and that with the exception of a specific bequest to the grandchildren, all the rest and residue of the estate of William S. Mudd was devised by the terms of his will to his executors to have and to hold for a period of 10 years after his death, for the sole, separate and exclusive use and benefit of his children who survived him, to wit, Joseph P. Mudd, Sarah E. Cochran, Florence E. Jordan, Virginia T. Walker and Sue E. Mudd. It was also provided in said will that after the expiration of the 10 years from the death of the testator, his executors should divide all of his estate between his said five children; that at the expiration of 10 years from the death of William S. Mudd, his five children, all of them being of full age, "agreed that it was inadvisable to have a division of said trust estate at that time, and that the same should continue to be held by the said William A. Walker and Joseph P. Mudd as such executors, and that the rents, incomes and profits of such estate should be received and disposed of by them in accordance with the terms and provisions of said will."

The provisions of the will, which are involved in the present controversy, are sufficiently shown in the opinion.

It was further averred in the bill that William A. Walker and Joseph P. Mudd had never made any settlement of their accounts as executors; that Joseph P. Mudd was entitled to large commissions as such executor, and that it was necessary to have an accounting with the said William A. Walker, as such executor, to determine what might be due by him, as executor...

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