3, Badham v. Badham

• Decision Date: 15 April 1943
• Docket Number: 6 Div. 2,3.
• Citation: 244 Ala. 622,14 So.2d 730
• Parties: BADHAM v. BADHAM et al. (two cases).
• Court: Alabama Supreme Court

14 So.2d 730

244 Ala. 622

BADHAM v. BADHAM et al. (two cases).

6 Div. 2, 3.

Supreme Court of Alabama

April 15, 1943

Rehearing Denied June 5, 1943.

Rehearing Granted Aug. 7, 1943.

Robert C. Garrison and Richard Hail Brown, both of Birmingham, for appellants.

Bradley, Baldwin, All & White, of Birmingham and Merrill & Harrison, of Dothan, for appellee (guardian).

BROWN Justice.

The order of submission entered in the circuit court, in equity recites, "On this the 16th day of August, 1941, it is ordered by the court that this cause be submitted for decree on the sufficiency of the pleas to the bill of complaint as last amended and to the cross-bill as last amended."

Following this submission on the same date the court entered the following order:

"This cause coming on to be heard was submitted for hearing and decree on

the sufficiency of the pleas of Lila M. Johnston, as Guardian of the infant respondents to the Bill of Complaint as last amended and to the Cross Bill of Respondent, William T Badham, as Trustee of the Estate of Leila J. Badham Deceased, as last amended, and the same having been considered by the Court the Court is of the opinion that said pleas are sufficient,

"Wherefore, it is ordered, adjudged and decreed by the Court that said pleas to the said Bill of Complaint as last amended and to said Cross Bill as last amended, be and they are hereby held sufficient and that the sufficiency thereof be and is hereby sustained.

"Done and ordered, this the 16th day of August, 1941."

At a later date the court entered the final decree in words as follows:

"Upon motion of respondents to dismiss said cause for that complainant was allowed thirty days from the 19th day of November, 1941, in which to amend the bill of complaint and to date hereof no amendment has been filed, it is, upon consideration thereof,

"Ordered, adjudged and decreed by the Court that this cause, including the cross-bill be and it is hereby dismissed.

"Court costs accrued in said cause are hereby taxed against complainant for which let execution issue.

"Done and ordered, this the 23rd day of December, 1941."

From this decree the complainant and the respondent who filed the answer and cross-bill separately appealed and separately assigned errors.

Taking the recital of the final decree at its face value the respondent William T. Badham, as trustee under the will of Leila J. Badham, deceased, joined in the motion "to dismiss said cause" and can take nothing by his appeal.

No reason appears on this record why the original bill should have been dismissed. We assume the parties, and the court, proceeded on the theory that inasmuch as the special pleas filed to the bill were adjudged sufficient, that it was incumbent on the complainant to amend his bill and avoid the defense set up therein by pleading additional facts, or to disprove the pleas.

That position is untenable. The complainant had the option to amend if he could by alleging facts which would avoid the defenses specially pleaded, or take issue thereon. Templeton v. Scruggs et al., 234 Ala. 146, 174 So. 237. The effect of the pleas was to admit the allegations of the bill and, if the cause had been submitted for final decree and the pleas were not sustained by proof, complainant would be entitled to relief, assuming that there was equity in the bill. Prowell v. Wilson, 219 Ala. 645, 123 So. 38.

The submission being only to test the sufficiency of the pleas, complainant's failure to amend the bill was tantamount to taking issue on the special pleas, and the burden was on the defendant to offer proof to sustain them, and it was error to dismiss the bill. Howell v. Howell et al., 171 Ala. 502, 54 So. 601; Prowell v. Wilson, supra.

The original bill is filed by Vernon Cosby Badham against William T. Badham, as trustee of the estate of Leila J. Badham, deceased, William Young Johnston and Leila Badham Johnston, minors, alleging that he is the principal beneficiary in the trust created by said will which, after certain specific bequests, bequeathed to and vested in said trustee, "All the rest, residue and remainder of my estate, real, personal, and mixed, wheresoever situated, which I may own at the time of my death * * * forever, in trust for the following purposes, to-wit:

"(1) To use, apply and expend from time to time as needed, as much of the trust property, income or corpus or both, as may be necessary or proper, for and to the comfort, support and maintenance of my husband, Vernon Cosby Badham, for and during the term of his natural life, the support and maintenance so to be furnished to him shall be ample and comfortable and fully up to his station in life and previous standard of living.

"(2) In order that the said Trustee may completely and easily accomplish and effectuate the aforesaid purposes of the trust, I hereby vest him with full power to take possession of the trust estate, and hold, manage and control the same, to convert into cash all or any part of the trust property, to invest and re-invest the trust funds, to operate the lease the farming lands, to hold and rent out the other realty, and to mortgage or sell all or any part of the trust estate, as in his judgment and discretion may seem wise, proper, necessary or expedient. All cost and expenses of administration shall be paid by the Trustee out of the funds of the Trust Estate from time to time as such costs and expenses become due.

"That the main purpose in creating this Trust is to provide an ample and comfortable support and maintenance for this said Vernon Cosby Badham, for and during the term of his natural life; and I direct that the provisions of the Trust be liberally construed, so as to fully and completely accomplish this purpose.

"That the property herein directed to be applied to the support and maintenance of the said Vernon Cosby Badham shall not be subjected by his creditors, if any, to the payment of his debts.

"That upon the death of the said Vernon Cosby Badham, and the complete accomplishment of the aforesaid purposes of the trust, then, if at that time, any balance of the trust property shall remain on hand, such balance, if any, shall be divided as follows: My store building No. 132 Broad Street, Eufaula, Alabama, to my niece, Leila Badham Johnston. The rest, residue, and remaining of the trust property shall be divided among my nephew, William T. Badham, my niece Leila Badham Johnston and my nephew, William Young Johnston, share and share alike, the division to be per stirpes. * * *"

The bill alleges "that respondent is allowing complainant only $250.00 per month for support, which sum is not adequate to maintain complainant 'comfortably and fully up to his station in life and previous standard of living' his previous standard of living having been that of a man of wealth, and respondent refuses to provide more for said support until so directed by a court of competent jurisdiction."

The bill prays for the interpretation of said fourth paragraph of the will, and for general relief.

The guardian of said minors appearing and pleading for them filed in their behalf several special pleas, setting up the pendency in the circuit court, in equity, Barbour County of the case of Badham et al. v. Johnston et al., filed by said minors in February, 1940, the scope and purpose of said proceeding, as stated in the opinion of this court on appeal, was:

"First, to remove the ancillary administration of the estate of Leila J. Badham, deceased, from the Probate Court of Barbour County to the Circuit Court, in equity; to enjoin the sale of certain property belonging to the trust estate and for the removal of the trustee.

"Second, to establish a trust arising out of an alleged gift, as a wedding present, of 'Westover formerly known as the Williams place,' an ancestral home and adjoining plantation, evidenced by letters and subsequent dealings therewith by the donor Leila J. Badham in her lifetime.

"Third, to determine and quiet the title to real property situated in the State of Georgia, as between the administratrix of Willie M. Johnston, deceased, and V. C. Badham sole distributee, under the laws of Georgia, of the estate of his wife, the said Leila J. Badham, deceased." Badham et al. v. Johnston et al., 239 Ala. 48, 50, 193 So. 420, 421.

The pleas allege that the parties here were all parties to that bill. Plea 1 embodies the final decree of the court, which, omitting caption and recitals of an amendment not here material, is as follows:

"This cause is submitted upon the bill of complaint as finally and lastly amended, the answer of the respondents thereto, the petition of William T. Badham as Executor and as Trustee under the last Will and Testament of Leila J. Badham deceased, setting up the basis of agreement of settlement made between him and the Complainants and especially with the Guardian of the minors involved in this suit, praying for a confirmation of said agreement and a decree of the Court incorporating the agreement and ordering its execution by the parties to this suit, the answer of the guardian of the minors admitting the allegations of the petition and joining in the request and prayer, answer of the Guardian ad Litem heretofore appointed by the Court denying the allegations of the petition and demanding strict proof, consent in writing by all of the parties to the hearing of this cause at this time and place, and to the taking of testimony orally, and the testimony this day taken orally before the Court and transcribed by the Court Reporter and filed in this cause.

"Upon consideration of the pleadings and oral testimony, it is the judgment of the Court that the petition of the Respondent William T. Badham, as Executor and Trustee under...