Austin v. Pepperman
| Decision Date | 03 June 1965 |
| Docket Number | 3 Div. 21,Nos. 3,s. 3 |
| Citation | 179 So.2d 299,278 Ala. 551 |
| Parties | Burton F. AUSTIN v. J. Ed. PEPPERMAN et al. John C. GODBOLD, as Guardian Ad Litem, et al. v. J. Ed. PEPPERMAN et al. Div. 21,-A. |
| Court | Alabama Supreme Court |
Rufus M. King, Capell, Howard & Cobbs and Walter, J. Knabe, Montgomery, for appellant Austin.
L. Lister Hill and Godbold, Hobbs & Copeland, Montgomery, for Godbold, as guardian ad litem and others as cross-appellants.
David W. Crosland, Montgomery, guardian ad litem for minor appellees.
Richard A. Ball, Montgomery, for appellee Pepperman.
The husband of testatrix appeals from a decree construing the will adversely to the husband.
The guardian ad litem for certain minor beneficiaries under the will also appealed and has undertaken to cross-assign errors.
The reporter will set out pertinent provisions of the will and two codicils.
Testatrix died January 28, 1959. The will and first codicil were admitted to probate and J. Ed Pepperman was appointed executor March 6, 1959.
On June 2, 1959, executor filed petition to probate the second codicil, which was admitted to probate June 8, 1959.
Testatrix left an estate which included two parcels of realty consisting of her homeplace of about 17 acres on Woodley Road, herein sometimes called the Woodley property, and a house and lot on Adams Avenue. Each of the two parcels was subject to a separate mortgage. Cash and insurance amounted to $2,354.11. The other personal property does not appear to be of significance.
The executor, on April 19, 1960, filed a petition praying for removal of administration to circuit court. Removal was ordered April 25, 1960.
On June 20, 1960, executor filed a petition for instructions as to the proper construction of the will and codicils. Among other things, the petition recites:
'Petitioner respectfully represents to the Court that it is necessary to sell all or a part of this real estate for the purpose of paying said debts. . . ..'
On August 5, 1960, the court rendered a decree authorizing executor to determine what part of property should be sold and to advise the court thereof.
On March 2, 1961, executor filed petition, advising that the Woodley property be sold and that he had an offer of $58,500.00, less commission of $1,500.00, for this property. The executor attached to this petition a paper signed by the executor, the husband, and three blood members of family of testatrix other than the executor, whereby the signers agreed to the sale of 'any and all property' of testatrix as provided in the will. This agreement is dated: '. . . this ___ day of April, 1959.'
The court approved the sale and the Woodley property was sold. The separate mortgage on this property was assumed by the purchaser and, out of proceeds of sale, executor paid debts and claims against the estate. We understand that a balance of approximately $19,000.00 remains in the hands of executor for payment of legacies and costs of administration.
Various beneficiaries under the will assert their several claims to the undistributed balance. The court rendered a decree construing the will and declaring rights of parties. On rehearing, certain parts of the decree were changed.
The errors insisted on are that the court erred in certain parts of the last two decrees.
On Appeal.
The court noted in its decree that, under the original will, the husband was given the privilege of living on the Woodley property, subject to certain conditions; that, under the first codicil, reference is made to payment to the husband of a sum equal to all payments made by him on a mortgage on the Woodley property in event it is sold and the husband is not provided a home for his lifetime; that the property had been sold under order of court; that remainder of proceeds of sale were held subject to further order of the court; and that
The husband insists that the court erred in denying him reimbursement for mortgage payments he had made. It appears undisputed that the husband had paid $14,432.40 on the mortgage on Woodley property.
Appellees are divided into two opposing forces on certain items in the decrees, but all appellees, except executor who remains neutral here, unite in support of the decree denying payment to the husband.
In paragraph 2, testatrix provided:
'2. It is my desire that my . . . husband . . . shall have a home on property . . . on Woodley Road, during his lifetime, and that my brother, . . . his wife and children, and my daughter-in-law, . . . and her children by my son . . . should have a place where they can visit on said property so long as they shall live. . . .
'(a) My husband, Bert Austin, shall have the privilege of living in any one of the four houses now on the said property according to his choice, so long as he shall live, except that he shall not be permitted to use the . . . garage apartment, in the 'If there is any mortgage on the property at the time of my death, I will that the mortgage shall be said from my estate, and that my husband shall not make any further payments on it. The home which he selects shall be insured by him for the benefit of my estate, and he shall pay the premiums on this insurance and shall pay taxes for said part of the property and shall keep same in repair.
event that part . . . is being occupied by my daughter-in-law . . . at the time of my death. He may select any one of the houses . . .. Once he has made his selection he shall continue to occupy that house, except that in the event that he selects the house we are now using as our home and then in the further event that he remarries, he shall vacate said house and occupy any one of the other three, subject to the rights of Cornelia Sealy as to the garage apartment . . ..
'(b) In the event my son, Ed, remarries my daughter-in-law, Cornelia Sealy, then my son and my daughter-in-law during their marriage shall have the privilege of making their home in said house during such time as my husband is not occupying same as a home.
In paragraph 3, testatrix gives to the daughter-in-law, Cornelia Sealy, 'the privilege of occupying' the garage apartment so long as she remains unmarried or married to the son of testatrix; gives to the children of the marriage of daughter-in-law and son 'a home in said garage cottage apartment so long as any of them shall live'; provides for renting the house if it becomes vacant; but provides that 'one of the persons herein specified' may recover possession on giving sixty days' notice in writing. Testatrix also provided that 'the property shall have with it a lot' as specified, said 'lot to be established' by the trustee. We note here that we have not found where the trustee established this lot.
In paragraph 4, testatrix provided that the privilege of occupying property shall be 'limited to occupancy by the beneficiary' and beneficiary 'shall not have the privilege of renting said property.'
In paragraph 5, testatrix recognized that sale of the property left by her might become necessary or advisable, and provided for a method of approving a sale.
In paragraph 12, testatrix provided that her brother should have the privilege of selecting a lot if he should return to Montgomery to live. As we understanding the record, the brother did return to Montgomery to live, but did not select a lot prior to the sale. In the final decree, the court said:
'6. Under Item 12 of the original will J. Ed Pepperman, brother of the testatrix, was granted the privilege of selecting a lot from the Woodley Road property. Since the real estate from which the lot was to have been selected was sold for payment of debts of the estate the Court finds that in lieu In the decree on rehearing, the court directed the register to pay to the brother 'individually the sum of $2,100.00.' The parties do not argue that this award to the brother was error.
of said lot said J. Ed Pepperman is entitled to the sum of $2,100 which under the testimony would have been the value of the lot he was authorized to select, said sum to be subject to claims and debts of the estate in the same manner as the lot would have been.'
By the first codicil, testatrix provided that in the event the Woodley property, '. . . or any part of it, is sold and by such sale my husband, Bert Austin, is not provided a home for his lifetime, then out of the proceeds of such sale he shall be paid a sum . . ..'
There were four houses on the Woodley property, to wit: the big or main house...
To continue reading
Request your trial
-
Brittain v. Ingram
...The mind of the testator is the law of the will, if the intent is lawful. Betts v. Renfro, 226 Ala. 625, 148 So. 406; Austin v. Pepperman, 278 Ala. 551, 170 So.2d 299. The circumstances surrounding testator, the condition of testator's family and estate are indeed, as pointed out by appella......
-
Davis v. Davis
...and devises. First National Bank of B'ham v. United States, D.C., 328 F.Supp. 1339 (28 AFTR 2d 147,597) (1971); Austin v. Pepperman, 278 Ala. 551, 179 So.2d 299 (1965). However, Alabama has further established an exception to this rule as to the widow of the decedent, holding in Steele v. S......
-
First National Bank of Birmingham v. United States
...the residuary gifts, then the general legacies, and finally the specific legacies and devises. See, e. g., Austin v. Pepperman, 278 Ala. 551, 179 So.2d 299 (1965). Under such a rule there would have been available for distribution among the general legatees (having potential interests of $4......
-
Zimmerman v. First Nat. Bank of Birmingham
...gift, it is contingent, but if annexed to the time of payment, enjoyment, or delivery of possession, it is vested. Austin v. Pepperman, 278 Ala. 551, 562, 179 So.2d 299 (1965); Crawford v. Carlisle, supra. Cf. Simes & Smith, supra at § The final provision which might indicate an intention t......