Campbell v. Weakley

• Decision Date: 11 April 1899
• Parties: CAMPBELL ET AL. v. WEAKLEY.
• Court: Alabama Supreme Court

25 So. 694

121 Ala. 64

CAMPBELL ET AL. v. WEAKLEY.

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 to the estate of complainant's said intestate.

It was further averred that at the time of the filing of the present bill, the estate of William S. Mudd, deceased, owned considerable personal property and a large amount of real estate, which, at the expiration of 10 years from the death of William S. Mudd, vested equally in said Joseph P. Mudd and his four named sisters; that said real estate is, in part, of such character that it cannot be equitably divided among the owners thereof, and that it was necessary for it to be sold in order to effect an equitable and equal distribution of the proceeds among the joint owners.

The complainant then averred in the bill that the personal property belonging to the estate of said Joseph P. Mudd, deceased, was insufficient to pay the debts of said estate, and that it was necessary to sell the real property belonging to such estate for the payment of its debts; that the only property belonging to Joseph P. Mudd, which was unincumbered, was his undivided one-fourth interest in the property belonging to the estate of William S. Mudd, and that Joseph P. Mudd, at the time of his death, was a widower, and left surviving him, as his only children and heirs at law, William S. Mudd and Joseph P. Mudd, who are minors under the age of 14 years. The four sisters of Joseph P. Mudd, all of whom were over 21 years of age, and William S. Mudd and Joseph P. Mudd, the son of said Joseph P. Mudd, deceased, were made parties defendant to the bill, and a guardian ad litem was asked to be appointed for the infant defendants.

The prayer of the bill asked for an accounting by William A. Walker, as executor of the will of William S. Mudd, deceased; that a settlement of said accounts be had, and that William A. Walker be required to pay to the complainant, as administrator, whatever might be found to be due complainant's intestate on said settlement, and further that the estate of William S. Mudd, deceased, be divided as required by the said will, and that so much thereof as could not be equitably divided should be paid over to the complainant, to be used by him in paying the debts of Joseph P. Mudd, deceased, and to be disposed of in accordance with the law.

E. K. Campbell was appointed guardian ad litem of William S. Mudd and Joseph P. Mudd, the infant children of Joseph P. Mudd, deceased, and said infant defendants, by their guardian ad litem, demurred to the bill on the ground that Joseph P.

Mudd the complainant's intestate, having died before the division of said trust estate was made, the said infant defendants succeeded to all the rights in said trust estate to which the said Joseph P. Mudd would have been entitled, if living, and that, therefore, said infant defendants would be the equitable owners of an undivided interest...