Bass v. Bass

• Decision Date: 29 January 1890
• Parties: BASS ET AL. v. BASS ET AL.
• Court: Alabama Supreme Court

7 So. 243

88 Ala. 408

BASS ET AL. v. BASS ET AL.

Supreme Court of Alabama

January 29, 1890

Appeal from chancery court, Jefferson county; THOMAS COBBS, Judge.

Webb & Tillman, for appellants.

Taliaferro, Smithson & Vaughan and Hewitt Walker & Porter, for appellees.

STONE C.J.

This case was decided on demurrer, which was an admission of the truth of the averments of facts as found in the bill. We will treat them as facts.

Andrew Bass, a resident of Jefferson county, died August 19, 1854. He left a last will, which was duly probated and established the time of the probate not positively stated. The language of the bill bearing on this subject is as follows: "That, shortly after the death of said Andrew Bass, the said Jane Bass, widow, etc., and your orator W. J. Bass, caused the will of said Andrew Bass to be probated as hereinbefore stated, and letters testamentary, or of administration cum testamento annexo, to be issued to the said Jane Bass as administratrix, and the said W. J. Bass as administrator, of the estate of the said Andrew Bass, deceased, and duly qualified as such administratrix and administrator, as aforesaid, and took upon themselves the joint administration of the estate."

Testator left his widow, Jane Bass, and nine children, surviving him, one of whom, George Bass, died without issue, never having married. The widow, Jane Bass, also died, April 14, 1887, near 33 years after the death of Andrew Bass. The following are extracts from Andrew Bass' will: "I give all my property belonging to me, both real and personal, to Jane Bass, my beloved wife, her life-time. *** It is my desire that at the death of my wife, Jane, that my property, both real and personal, be sold, and equally divided among my heirs," etc.

The present suit was instituted March 26, 1889, by W. J. Bass and four others, children of Andrew Bass, against the remaining three children, of whom Martha E. Bass is one. Its purpose and prayer are to have a resulting trust declared in certain lands, and in certain moneys, the proceeds of other lands. We will not enter into a discussion of the requisites of a resulting trust. The averments of the bill clearly bring this case within the rule, if it is not barred by lapse of time. 3 Brick. Dig. 785.

The following extracts set forth the gravamen of the present bill: "That, a few days before the death of the said Andrew Bass, he *** placed in the hands of one Willis Burns *** the sum of fifty-two dollars and fifty cents, in lawful money, with which he directed the said Willis Burns to enter the north-west quarter of the south-west quarter of section five, in township seventeen, of range one west, in Jefferson county, but by reason of some accident or mistake the said Burns failed to enter the said lands at the land-office in Tuscaloosa, Ala., for the said Andrew Bass, *** but at the death of said Andrew Bass he, the said Burns, retained the said money in his hands; *** that, soon after the said Jane Bass had so qualified as the administratrix of her said husband's estate, she, the said Jane Bass, went to Tuscaloosa, and filed in the land-office of the United States then located in the said city of Tuscaloosa her application to enter, and did enter, in her own name, the following described lands, situated in said county of Jefferson, *** to-wit, the south-east quarter of the north-east quarter of section six, (6,) and the north-west quarter of the south-west quarter of section five, (5,) and the east half of the north-west quarter of section eight, (8,) all in township seventeen, (17,) of range one (1) west, in said county of Jefferson; that in order to make said entry, and for the purpose of paying for the said lands so entered, she, the said Jane Bass, obtained the said money which had been so deposited and left by the said Andrew Bass in the hands of the said Willis Burns; that the said lands above described, under the laws of the United States, then in force, then known, and commonly known, as the 'Bit Law,' were subject to entry at twelve and a half cents per acre, and were entered at that price by the said Jane Bass in her own name, but the same were paid for out of the fifty-two 50-100 dollars which she, the said Jane Bass, had obtained, or at the time of the entry did obtain, from the said Willis Burns, and which your orators and oratrix aver was the identical money which had been left with said Burns by the said Andrew Bass for the purposes aforesaid." The bill then charges that during the life-time of said Jane Bass she sold off fractional parts of said lands, and that about the 12th day of August, 1879, the said Jane Bass made a deed of gift of the residue of said lands to her daughter, Martha E. Bass, less the S.E. 1/4 of the N.W. 1/4 of said section 8, and that about _____ day of March, 1889, the said Martha E. Bass sold the parts of said lands which are in sections 5 and 6 for the sum of $7,000 cash. There was a demurrer to the bill on the ground of staleness or lapse of time, which the chancellor sustained.

The contention of complainants below, appellants...