Baker v. Baker

• Decision Date: 17 April 1913
• Citation: 182 Ala. 194,62 So. 284
• Parties: BAKER et al. v. BAKER et al.
• Court: Alabama Supreme Court

62 So. 284

182 Ala. 194

BAKER et al. v. BAKER et al.

Supreme Court of Alabama

April 17, 1913

Appeal from Selma City Court; J.W. Mabry, Judge.

Bill by George L. Baker, individually, and as executor and trustee against Lillian H. Baker and others, to construe a will and quiet title to land devised thereby. Decree for complainants and respondents appeal. Affirmed.

The following is the copy of the will:

"State of Alabama, Dallas County. Know all men, that I, George O Baker, of Selma, Alabama, state and county aforesaid, being in good health, and of sound mind and desiring to dispose of my worldly affairs, as seems to me best in case of my death, do make and constitute this writing to be my last will and testament. 1st, I nominate and appoint my wife and my two sons, namely, Belzora M. Baker, Joseph M. Baker, and George L. Baker, my executors and trustees, to carry out the terms of this, my will, as hereinafter provided, without bond.

"2nd, I give and bequeath to each of my children, or their survivors, viz., Nellie, Mary, Joseph, George, Mabel, Hattie and Grace, $1,000.00 in cash, and in the event I should at any time pay this amount to either of them before my death, it is to be considered as paid under the terms of this article in my will, and so charged.

"3rd. After paying all my just debts and legacies, named in article 2, I give and bequeath to my wife Belzora M. Baker, all the incomes and profits arising from my estate, real and personal to use as she may deem proper during her lifetime, or during the time she may remain single.

"4th. After the death of my wife or in the event of her not remaining single, the surviving trustee or trustees, shall take out of said estate enough personal or other property to pay each one of my sons if living--his pro rata share of my estate--my object being to give my sons, if living, or their issue, their share of their estate in full; and my daughters that may be living, to have share and share alike in the net income arising from their part of the estate, as provided for in article 6 of this, my will.

"5th. Should my wife not remain single, her trusteeship and interest in my estate as provided for in this, my will, shall cease, and my two sons or the survivor of them, shall continue to carry out the trust contained in this, my will.

"6th. The trustees are requested (after taking out the amount found to belong to my son or sons, according to article 4) to keep all the property in good repair, and pay all expenses, taxes, insurance, etc. out of the income, so as to keep the principal unimpaired, and divide only the net profit accruing from the income, as stated in article 4th, of this my last will.

"7th. At the death of either of my daughters without issue, her share of my estate shall be equally divided between the surviving brothers and sisters, share and share alike, but if such deceased daughter should leave issue, her share shall go to such issue--I mean by this that so much of the estate shall be set aside and divided as would be her share of the estate, if the estate was divided, instead of the income therefrom.

"8th. In the event of the death of my wife, or her not remaining single, my children then living may divide among themselves all the furniture and other property, about my residence.

"9th. Provides against the contest with a penalty of disinheritance.

"10th. That any changes to be made will be made by codicil."

Mallory & Mallory, of Selma, for appellants.

R.H. Mangum and Partridge & Hobbs, all of Selma, for appellees.

MAYFIELD J.

The bill in this case is duplex. It seeks, first, a construction of the will of George O. Baker; and, second, the quieting of the title to lands devised thereby. The bill is filed by the executors of the will for a construction thereof and a proper administration of the trusts created thereby. The testator left surviving him a wife, Belzora, and two sons, Joseph and George, and four daughters, Nellie, Mary, Hattie, and Grace, as the objects of his bequests. The reporter will set out the will in full, so that this opinion may be the better understood.

One of the chief contentions between the parties, and one of the chief questions for decision in the lower court and on this appeal, is the proper construction to be accorded to paragraph 7 of the will of George O. Baker, which will be found in the statement of facts.

The following facts are practically admitted:

(1) That after the death of the widow of the testator, George O. Baker, the shares of the two sons, Joseph M. Baker and George L. Baker, were set apart to them, and the shares of the daughters were held in further trust for them and administered as provided in the will.

(2) That at the death of the said widow all the children of the testator were living.

(3) That subsequent to the death of said widow one of the daughters, namely, Mabel, died, leaving no issue, having never married.

(4) That subsequent to the death of said Mabel one of the sons, namely, Joseph M. Baker, died, leaving his widow, Lillian H Baker (now his executor), and two minor children, George Baker and Belzora Baker.

(5) All the other children of said testator, George O. Baker, are still living.

The prayer of the bill important to this consideration was as follows: "That this court take jurisdiction of this cause for the purpose of advising and instructing said executor and trustee how said trusts shall be performed in so far as the setting apart and division of the share of Miss Mabel Baker is concerned, and if the court holds that the two children of Joseph M. Baker have an interest, present, vested or contingent, in the part of the estate which will be set apart and divided upon the death of each of the now living daughters of said testator, that the executor and trustee be authorized and empowered to sell at private sale the above-described lots of land in Birmingham for the purpose of making said division, and that the court further construe said will, settle the doubts and difficulties above stated, and quiet the title of the adult beneficiaries of said will as against the reputed claim of said minor children of Joseph M. Baker, deceased."

The part of the decree pertinent to this decision is as follows "That the share of Miss Mabel Baker, deceased, in the property and estate of the late George O. Baker, now being administered and rightfully belonging to the trusts of said will, is an undivided one-fifth (1/5) part of all of...