Ballentine v. Foster

• Decision Date: 17 January 1901
• Citation: 128 Ala. 638,30 So. 481
• Parties: BALLENTINE ET AL. v. FOSTER ET AL. [1]
• Court: Alabama Supreme Court

30 So. 481

128 Ala. 638

BALLENTINE ET AL. v. FOSTER ET AL. ^[1]

Supreme Court of Alabama

January 17, 1901

Appeal from chancery court, Morgan county; William H. Simpson Chancellor.

Bill by James H. Ballentine and others against Susan A. Foster and others. Demurrer to bill sustained, and complainants appeal. Affirmed.

It was averred in the bill that Samuel Watkins died in the year 1835, possessed of certain lands, which are specifically described, and which are involved in this controversy, and he left a last will and testament, which was duly probated. This will is made an exhibit to the bill. It was then averred in the bill that by the second item of said will the testator devised and bequeathed certain real and personal property to his son Paul J. Watkins, and by the fifth item of said will bequeathed and devised the residue of his estate, both real and personal, to trustees therein named, for the benefit and use of his daughter, Elmira C. Swoope, and her children, and his son Edgar Watkins. It was also provided in said fifth item that the income from the property should be distributed to the beneficiaries for a period named. The sixth item of the will was set out at length, and is copied in the opinion. It was further averred in the bill that pursuant to said will, and by agreement of all the parties interested, under the fifth and sixth items of said will, and by a decree of the chancery court rendered April 1, 1881, confirming said agreement, and decreeing a partition and division of said property described and referred to in the fifth item of the will, there was set apart to Edgar Watkins, the son of the deceased testator, subject to the provisions of the sixth item of the will, the real estate involved in this controversy; that this land was partitioned to him as his part of the estate devised to him by the testator, and was subject to the provisions of the sixth item of said will that on April 15, 1887, Edgar Watkins died without issue never having married; that Paul J. Watkins died in 1861, and left surviving him the following children, who were living at the date of Edgar Watkins' death: Susan A. Foster and Mary E. Branch; that at the time of Edgar Watkins' death Elmira Swoope was living; that the title to one-half of the real estate allotted to Edgar Watkins vested at the time of his death in Susan A. Foster and Mary E. Branch, the children of Paul J. Watkins, and the remaining one-half interest vested in Elmira Swoope; that Elmira C. Swoope died intestate on January 1, 1889, and left surviving her the complainants who are her grandchildren, being the children of Elmira's only daughter and child, Mary E. Branch; that said Mary E. Branch died before Elmira Swoope died; and that the complainants are the next of kin and only heirs at law of said Elmira Swoope. It was then averred that, if the one-half interest in the lands allotted to Edgar Watkins did not vest in Elmira C. Swoope at the time of his death, it then vested in Mary Branch, who was the only child of Elmira Swoope, and who had issue living, as an executory devise under the sixth item of said will, and descended to Mary Branch's children, who are the complainants in the present case. It was further averred in the bill that the defendant Joseph Wheeler and his daughter Lucy Wheeler claim in a conveyance from Mary E. Branch of her interest in said property; that Susan A. Foster and her husband executed on October 29, 1891, a mortgage to the guardian of the minor heirs, who are complainants, and conveyed therein Susan A. Foster's interest in a certain portion of said lands. The prayer of the bill was that the real estate involved in the controversy and specifically described in the bill may be divided by the decree of the court, and one-half thereof allotted to the complainants. There was also a prayer for the holding of a reference before the register to account for the rents, income, and profits. There was also a prayer for general relief. To the bill as amended each of the defendants demurred, setting up in various ways that the bill was without equity, in that it did not show such title in the complainants as would enable them to maintain it for the partition of the lands described. Upon the submission of the cause the chancellor rendered a decree sustaining the demurrers, and "ordered that the bill as amended be dismissed out of this court unless the complainants can amend so as to give it equity."

Jas. H. Ballentine and Shelley & Pleasants, for appellants.

Grayson & Foster, for appellees.

DOWDELL J.

The sixth clause of the last will and testament of ...