De Bardeleben v. Stoudenmire

• Decision Date: 10 May 1887
• Citation: 2 So. 488,82 Ala. 574
• Parties: DE BARDELEBEN v. STOUDENMIRE.
• Court: Alabama Supreme Court

2 So. 488

82 Ala. 574

DE BARDELEBEN v. STOUDENMIRE.

Supreme Court of Alabama

May 10, 1887

Appeal from chancery court, Autauga county.

Bill in equity by wife's legatee and devisee against surviving husband and trustee for account of waste.

The bill in this case was filed on June 2, 1882, by J.S Stoudenmire against Warren L. De Bardeleben, and sought an account of waste alleged to have been committed by the defendant on lands belonging to his deceased wife, Mrs Caroline W. De Bardeleben, who was the mother of the complainant by a former husband. At the time of the marriage between Warren L. and Caroline W. De Bardeleben, which occurred some time during the year 1871, said Caroline W. was the widow of Samuel Stoudenmire, and had a half interest in the property belonging to his estate, under the provisions of his will, which was established and probated in August, 1870 and in December, 1871, soon after the marriage, the property was divided between her and her son, the complainant, a plantation being allotted to her called the "Home Place." The alleged waste was committed on this place and consisted in the removal of the dwelling-house, and other buildings thereon, to the adjoining lands of said Warren L. This occurred during the year 1872, and said Warren L. and his wife resided in the dwelling-house, using the other buildings, from that time until her death, which occurred some time during the year 1878. By her last will and testament, Mrs. De Bardeleben bequeathed and devised all her property, "real and personal, of every kind and description," to her son, the complainant; and her will was duly admitted to probate in October, 1878, W. N. Northington being appointed as executor thereof, and duly qualifying as such. The bill alleged that Mrs. De Bardeleben held her property "as a separate statutory estate under the laws of Alabama;" that Northington continued to act as executor until his death, which occurred in the year 1881; that there is now no personal representative of said estate, and that there are now no debts outstanding against it.

The defendant filed a demurrer to the bill, assigning 16 grounds of demurrer, and among them the following: (1) That the complainant shows no right of action in himself; (2) that the right of action, if any, is in the personal representative of the deceased wife; (3) that the suit is barred by the statute of limitations of six years; (4) that the complainant, if entitled to any relief, has an adequate remedy at law; (14) that the facts and circumstances are not set forth which show that the said Caroline W. has an statutory estate in said property, since the will of said Samuel Stoudenmire is not set forth, so that the court may see whether the said Caroline had an equitable or a statutory estate under its provisions. The chancellor sustained the fourteenth ground of demurrer, but overruled the others; and the record shows nothing concerning an amendment of the bill. The defendant afterwards filed an answer denying most of the material allegations of the bill; denied that the property belonging to the estate of Samuel Stoudenmire was divided between complainant and his mother under the authority of the probate court; denied that he and his wife ever went into the possession of the property allotted to her by the division; denied that he ever acted as trustee for his wife, or assumed or exercised any control whatever over her property; and alleged that, "previous to his marriage with the said Caroline W., it was understood and agreed between them that, as respondent owned real and personal property amply sufficient for the support of himself and family, he should not exercise any of the rights given him by law, as husband, over the estate of the said Caroline, but that she should, after marriage as before, continue to manage, control, and use her estate; that after said marriage, in obedience to this agreement, said Caroline continued to manage her property according to her own will up to the date of her death; and that respondent did not, at any time after said marriage, receive, or assume to control or manage, any of her property, real or personal, as the husband or trustee of said Caroline." He denied that he had committed any waste on the lands of his deceased wife, and alleged, as to the removal of the houses, that she, acting under the advice of her attorney, against the will, and greatly to the annoyance and expense, of this respondent, superintendent and directed the removal of said houses to the lands of this respondent, giving as a reason for said removal that the lands on which they were placed would be her property after the death of this respondent. He also pleaded the statute of limitations of six years.

On final hearing, on pleadings and proof, the chancellor rendered a decree for the complainant, directing the register to state an account of the waste committed, and ordering him to calculate interest on the amount of damages from the date of the waste to the first day of the next term of this court. The defendant appeals from this decision, and assigns it, and the other matters mentioned, as errors.

SOMERVILLE J.

1. The bill avers the property in controversy, on which the...