Badham v. Johnston

• Decision Date: 11 January 1940
• Docket Number: 4 Div. 113.
• Parties: BADHAM ET AL. v. JOHNSTON ET AL.
• Court: Alabama Supreme Court

193 So. 420

239 Ala. 48

BADHAM ET AL. v. JOHNSTON ET AL.

4 Div. 113.

Supreme Court of Alabama

January 11, 1940

Rehearing Denied Feb. 6, 1940.

Appeal from Circuit Court, Barbour County; J. S. Williams, Judge.

Bill in equity for removal of estate from probate court to circuit in equity and other relief, by Leila Badham Johnston, a minor suing by next friend, Lila Johnston, and others, against William T. Badham, individually, as trustee, and as executor and another. From a decree overruling demurrers to the bill and motion to dissolve temporary injunction, respondents appeal.

Affirmed.

Chauncey Sparks, of Eufaula, and Richard Hail Brown, of Birmingham for appellants.

G. M. Harrison and A. K. Merrill, both of Dothan, for appellees.

ANDERSON Chief Justice.

This appeal is from an interlocutory decree authorized by §§ 6079 and 6081 of the Code 1923, overruling the defendants' "demurrers to the original bill and the bill as amended," and their motion to dissolve the temporary injunction granted upon the filing of the bill, before the order removing the administration of the estate of Leila J. Badham, deceased, was entered. Ashurst et al. v. Ashurst, 175 Ala. 667, 57 So. 442; Upshaw v. Eubank et al., 227 Ala. 653, 151 So. 837. The order of removal was subsequently made, and the irregularity was waived by the motion to dissolve. East & West Railroad Company of Alabama et al. v. East Tennessee, Virginia & Georgia Railroad Company, 75 Ala. 275.

On this appeal, under the statutes above cited, the ruling of the court on "the motion to strike certain portions of the complaint" is not reviewable, and the assignments of error predicated thereon are without merit.

The bill, filed by Leila Badham Johnston, and W. Young Johnston, minors by next friend, Lila Johnston, individually and as trustee of said minors, and as administratrix cum testamento annexo of the will of Willie M. Johnston, deceased, against William T. Badham, individually and as executor of the last will and testament of Leila J. Badham, deceased, and as trustee of the estate of said Leila J. Badham, under said will and V. C. Badham, the cestui que trust, a non-resident of the state, seeks:

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.

The demurrer is not addressed to any separate aspect of the bill, but is addressed to the bill as a whole, and to the separate paragraphs of the bill.

The decree, from which the appeal is prosecuted, recites: "Submission is further had on the demurrers to the original bill and the bill as amended, and on consideration, it is now ordered, adjudged and decreed that such demurrers be and the same are hereby overruled." [ Italics supplied.]

This, under repeated decisions, was a ruling on the demurrer to the bill as a whole. Sandlin et al. v. Anders et al., 210 Ala. 396, 98 So. 299; Oden v. King et al. 216 Ala. 504, 113 So. 609, 54 A.L.R. 1413; Kelly v. Carmichael, 217 Ala. 534, 117 So. 67.

It is a familiar rule of equity pleading that a demurrer addressed to the bill as a whole is not well taken if the bill in any one of its aspects is not subject to the stated grounds of demurrer. Kelly v. Carmichael, supra; Cade et ux. v. Walker, 214 Ala. 675, 108 So. 594.

If the bill is multifarious and the demurrer takes the point, though addressed to the bill as a whole, it should be sustained. The point of multifariousness is not taken by the demurrer, and whether or not the bill is within the influence of § 6526 of the Code is not presented. Ellis et al. v. Crawson, 147 Ala. 294, 41 So. 942; Code 1923, § 6553.

The pleader, in drafting the demurrer, seems to have had in mind only that aspect of the bill which seeks to remove the administration of the estate from the Probate Court to the Circuit Court, for further administration; to control the trustee, William T. Badham, in the exercise of the broad discretion vested in him by the will of Leila J. Badham, deceased, and to compel him to exhaust all the trust property in effecting the purposes of the trust before selling the store property in Eufaula, of which the minor Leila Badham Johnston is a mere residuary executory devisee as to this property. Code 1923, §§ 6902, 6905.

No thought seems to have been given to the aspects of the bill which seek to establish a trust in "Westover," and the aspect seeking to settle title to the real property situated in the State of Georgia. Treating amendable defects apparent on the face of the bill, as amended as must be done on considering the general demurrer for want of equity, the bill in the second aspect mentioned has equity, certainly to the extent of requiring an accounting for the purchase money received by Leila J. Badham, deceased, and loaned by J. H. Ilderton and Leila J. Badham as trustees for the minors, W. Y. Johnston, Jr., and Leila Badham Johnston, and probably to establish a trust in "Westover" on the basis of a gift evidenced by the letters of Leila J. Badham, deceased, and V. C. Badham, and the subsequent dealings with the property unless such gift is interdicted by § 8269 of the Code. Code 1923, § 6917; Wiggs v. Winn. 127 Ala. 621, 29 So. 96.

This is sufficient under the authorities cited to justify the decree overruling the demurrers to the bill.

The motion to dissolve the injunction was rested solely on the ground that there was no equity in the bill, and the ruling of the court on this motion might well be rested on the ground that the bill is not without equity, in the aspect noted above, but the parties have argued other questions which go to the aspect of the bill on which the injunction itself operates--the control of the trustee in the exercise of the discretion vested in him by the instrument creating the trust.

The trust is created by the 11th and 12th paragraphs of the will dealing with the residuary estate of the testatrix, left after specific devises, and is in language following:

"11--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, I give, bequeath and devise unto my nephew, William T. Badham, as Trustee, his heirs, executors, administrators, successors and assigns 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 and 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

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