Bailey v. Selden

• Decision Date: 12 November 1896
• Citation: 112 Ala. 593,20 So. 854
• Parties: BAILEY v. SELDEN.
• Court: Alabama Supreme Court

20 So. 854

112 Ala. 593

BAILEY v. SELDEN.

Supreme Court of Alabama

November 12, 1896

Appeal from chancery court, Perry county; W. H. Tayloe, Chancellor.

Suit by Bettie Selden Bailey and others against Joseph Selden and others. From a decree for respondent Selden, complainant Bailey appeals. Affirmed.

R. H Clarke, J. H. Stewart, Seay & De Graffenried, and J. W. Bush for appellant.

Pettus & Pettus, for appellee.

HEAD J.

George W. H. Minge, who died in 1880, a resident citizen of Marengo county, in this state, left his last will, which was duly established. Its dispositions touching the property now in controversy, to wit, the Fair Hope plantation, in Perry county, Ala., "together with all the personal property contained thereon, which is now occupied by my son-in-law Capt. Joseph Selden," were that said plantation and personal property were devised and bequeathed to the testator's widow, Mary H. Minge, for life, with vested remainder in fee to the testator's granddaughters, Mary M. Selden and Maria L. Selden, with the provision, however that a "reasonable and economical maintenance and support out of the property" was devised and bequeathed to the said Joseph Selden, and that "the said plantation shall be his home during his natural life," and with the further provision that, during the lifetime of the widow, the testator's grandchildren G. Minge Selden, John A. Selden, and Bettie Selden should receive from the proceeds of the property "their education, maintenance, and support," and the property was expressly charged therewith. These dispositions appear to be simple and easily understood. The widow was invested with the legal and beneficial estate in possession, clothed with adequate legal remedies for reduction to and maintenance of her actual possession during her life, subject, however, to the trust that she should permit Joseph Selden to make the plantation his home during his life, and award to him out of the property, real and personal, a reasonable and economical maintenance and support, and to the further trust that she should award to the three named grandchildren, from the proceeds of the property, their education, maintenance, and support. In its legal sense, the possession of the property did not belong to Joseph Selden. It belonged to Mrs. Minge, the life tenant, whose duty it was to permit him to have his home upon the place. He could not disseise her, without subjecting himself to a possessory action at law, at her suit. The primary source of fulfillment of these trusts for maintenance would, in equity, be the rents, incomes, and profits of the property; and, these proving inadequate, the corpus, or a part thereof, might, in a judicious manner, be so appropriated. The widow, acting in good faith, and with just and reasonable judgment and discretion, in the observance and execution of the beneficial interests, secured to herself and her cestuis que trustent by the will, and with just regard to the ultimate rights of the remainder-men, was absolute in her right to the possession, management, and control of the property, and the discharge of the trusts imposed upon her. If she should abuse the trust declared for Joseph Selden, he was clothed with ample remedies for redress in a court of equity. So, also, was that forum open to the three grandchildren named for redress of any abuse of the trust declared for them. The remainder-men were invested with the usual equitable remedies which pertain to estates of that character for the preservation and protection of their ultimate interests. The estate of Mrs. Minge, the widow, being legal and in possession, her remedies, in whatever form her rights of possession and enjoyment growing out of the dispositions of the will might be invaded, were necessarily legal. We do not say that conditions may not arise which would entitle her to the aid of a court of equity in the administration of her trusts, as, for instance, it might be, if she should need the aid of that court in the application of the corpus of the property to the purposes of the trusts. These several rights and remedies of the several classes of persons referred to are independent and distinct. The remedies of Joseph Selden do not concern the three grandchildren nor the remainder-men. He and the remainder-men have nothing in common with the grandchildren, nor have he and the latter any interest in common with the remainder-men. In the enforcement of their respective beneficial or ultimate interests in equity, Mrs. Minge, the trustee and tenant of the particular estate, must needs be the prime adversary party; for it is upon her dereliction alone that a resort to equity by them could be justified. So long as she remains faithful to her duties, exercising in the administration and protection of the property the powers with which the law clothes her, there could be no resort by them to a court of equity. Mrs. Minge was by the will named, and she qualified, as executrix; but there are no rights of creditors involved in the litigation, and the rights of the parties litigant do not pertain to the executorial office or functions. That character may, therefore, be left out of view.

It was in view of this property, and these interests therein, that the bill in this cause was filed, on the 29th day of July 1885. The complainants in the original bill were-First, the widow, Mary H. Minge; then, the remainder-men and their husbands, they having intermarried since the death of the testator; and, next, the three grandchildren for whose education, maintenance, and support the will provided. The other cestui que trust, Joseph Selden, was the sole party defendant. With the necessary formal allegations as to the will, the relations of the parties, and their interests, exhibiting a copy of the will, the bill averred, that the testator left other large property besides Fair Hope and the personal property thereon, which was also devised to the widow for life, and that, having plenty to supply her wants, she did not insist upon subjecting for her own use and benefit a portion of the income, rents, and profits from the Fair Hope place and property thereon, which, at the time of testator's death, was in the possession of her son-in-law, Joseph Selden, but that she permitted him to collect and retain all of the same, and to remain in possession of the property, and that he is still in possession, appropriating to his own use the rents, etc., and has not accounted to her for any of the annual returns thereof, but has totally neglected to appropriate any of such rents, etc., to the other purposes named in the will; that she, the widow, being the grandmother of the three children for whose support, etc., the will provided, and their mother having died, and herself having plenty with which to support them, took the three children to her own home, and did not for some time require or demand of her son-in-law, Joseph Selden, any of the annual returns for their education, maintenance, and support, but educated, maintained, and supported them out of her own income. And the bill avers that the defendant, said Joseph Selden, being in possession and appropriating the rents, etc., to his own use, has set up some claim to the property other than conveyed by the will, and refuses to let the widow, as executrix and as owner of the life estate, share in the management and control of the plantation and the incomes and profits thereof, and is seeking by some pretended claim to defeat the estates of the remainder-men, who are ignorant of said pretended claim to the fee simple, and know of no claim of his to the lands other than that contained in the will; that the rental value of the property is, to wit, $1,400 per annum, and that there is...