Bell v. Killian
| Decision Date | 14 June 1951 |
| Docket Number | 7 Div. 92 |
| Parties | BELL v. KILLIAN et al. |
| Court | Alabama Supreme Court |
Scott & Dawson, Fort Payne, for appellant.
John B. Isbell, L. L. Crawford, John T. Black, W. M. Beck and W. W. Watson, Fort Payne, for appellees. The will involved is as follows:
'I, H. H. Killian, of Fort Payne, DeKalb County, Alabama, in view of the uncertainty of life, and being of sound mind and memory do make, public and declare my last will and testament as follows to-wit:
'1/ . . . I commend my soul to God who gave it.
'2/ . . . It is my will that all my just debts and funeral expenses, including a suitable monument to be placed at my grave, be paid out of the assets of my estate by my executrix hereinafter named as soon after my death as is convenient.
'3/ . . . I give and bequeath unto my beloved wife Roxiene Killian all the property, real, personal and mixed, of every description or kind whatever, that I may own or be possessed of in this State or any other State in the United States, at the time of my death.
'4/ . . . I nominate and appoint my said Roxiene Killian (sic) as the executrix of this my last will and testament: And I hereby expressly relieve and exempt her from executing any bond for the performance of her duties as said executrix. And I also expressly relieve and exempt her from reporting or accounting to any probate court, or other courts having jurisdiction of estates and wills for her acts of administration under this will, or her transactions thereunder.
'5/ . . . I will and direct that my said wife as said executrix shall hold manage and control all the assets of my estate, real and personal. My said executrix is hereby authorized and empowered to use said estate both real and personal in such manner as she may deem fit and proper for her maintenance, well being, comfort and support.
'6/ . . . I authorize and empower the executrix of my said estate to loan the assets of my estate, or to invest them either in real estate, or in bonds, or in other property as she, in her judgment may deem right and proper. I give her power and authority to collect the same, and all other matters due my estate, and receipt for the same, and make all contracts relative to my estate necessary to carry out this will.
'7/ . . . I hereby authorize and empower my said executrix to sell all real estate and personal property I may own at the time of my death on such terms as she may deem best, and to make proper deeds of conveyance thereto as said executrix and to collect for same by suit or otherwise and all mentioned in this item she may do without any order of any court and without further authority and power than is given hereby.
'8/ . . . I will that in the event there remains any of my said estate at the death of my beloved wife Roxiene Killian after paying funeral expenses as provided for myself--for her--, then in that event I will that whatever property of my said estate remaining on hand at her death, shall go to my brothers Bailey Killian and Demoville S. Killian and their heirs at law.
'In testimony whereof I have hereunto set my hand and seal this the 19th day of May, 1909.'
The appeal is from an interlocutory decree overruling demurrer to the bill as last amended. The amendments to the original bill only related to bringing in certain parties construed by the court to be necessary for a proper disposition of the litigation.
The original bill was filed by G. W. Killian, as administrator de bonis non cum test. anno. of the estate of Hugh H. Killian, deceased, who left a last will and testament devising to his widow, Roxiene Killian, all his property, with usual stipulations as to payment of debts, funeral expenses, etc. She was named executrix without bond, relieved from making any report to any court, and was given full right of disposition of the property of the estate without court order, 'to use * * * in such manner as she may deem fit and proper for her maintenance, well being, comfort and support,' but containing the following residuary clause: (The will will be reproduced with the report of the case.)
Testator died in 1945 and Roxiene acted as executrix of the estate until her death in 1950. The defendant, Bell, is her second husband and has qualified as administrator of her estate.
By amendment the residuary legatees were made parties plaintiff and the heirs at law of Roxiene were made parties defendant.
Right to relief rests on the primary equity that the quoted clause 8 of the will was a limitation on the power of the widow to consume or dispose of more of the estate than was reasonably necessary for her 'maintenance, well being, comfort and support' and on the basis of this interpretation, the bill shows that the widow married the defendant, Bell, soon after her husband's death and, by preconcerted fraud between them to deprive the residuary devisees of their share of the estate, she diverted all the funds and property of the estate to herself, to Bell, and to others that she used certain of the funds of the estate derived from sales of certain of the testator's real estate to invest said Bell and herself with title to real estate; that certain other of the testator's real estate was sold by her, as executrix under the purported authority of the will, but that the money was deposited in her own name in various banks, where some of it is still on deposit and which monies the defendant, Bell, as administrator of her estate, is seeking to administer; that certain of the real estate left by her husband was conveyed to said Bell for only a nominal consideration, for the manifest purpose of defeating the express instruction of the residuary clause of her husband's will and of defrauding the two named residuary legatees and their heirs. The bill prays, in addition to certain incidental matters not necessary to mention, for (1) removal of the administration of...
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Bell v. Killian
...relief. In the first appeal of this case, the decree of the trial court overruling demurrer to the bill was sustained. Bell v. Killian, 256 Ala. 245, 53 So.2d 604. The provisions of the will, executed in 1909, which are pertinent to a decision of the case are as '3. I give and bequeath unto......
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Simonetti, Inc. v. State ex rel. Gallion, 6 Div. 415
... ... Stone Container Corp. v. Stapler, 263 Ala. 524, 83 So.2d 283; Bell v. Killian, 256 Ala. 24, 53 So.2d ... Page 264 ... 604; Alabama State Milk Control Board v. Graham, 250 Ala. 49, 33 So.2d 11; Tyler v. Copham, ... ...
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Brittain v. Ingram
...which the probate court cannot protect, the circuit court assumes jurisdiction. More closely related to the present case is Bell v. Killian, 256 Ala. 24, 53 So.2d 604. There, in an action by the administrator of an estate to remove the administration therefor from the probate court to the c......
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Davis v. Davis
...that a 'justiciable controversy' be alleged. Alabama State Milk Control Board v. Graham, 250 Ala. 49, 33 So.2d 11. See also Bell v. Killian, 256 Ala. 24, 53 So.2d 604. Likewise the demurrers to the cross-bill brought by appellant-respondent Helen Davis were correctly sustained. The general ......