Bethea v. Bethea

• Decision Date: 22 June 1897
• Citation: 116 Ala. 265,22 So. 561
• Parties: BETHEA ET AL. v. BETHEA ET AL.
• Court: Alabama Supreme Court

22 So. 561

116 Ala. 265

BETHEA ET AL. v. BETHEA ET AL.

Supreme Court of Alabama

June 22, 1897

Appeal from city court of Montgomery; A. D. Sayre, Judge.

Bill by Theodore Bethea and another against Eugenia V. Bethea and another. From a decree overruling demurrers to the bill defendants appeal. Affirmed.

The bill filed by the appellees alleges that T. B. Bethea, their grandfather, died testate in 1879, possessed of a large estate; that his will was duly probated, and in the second paragraph thereof was the following bequest: "I give devise and bequeath to my wife Eugenia V. Bethea, my house and lot in the city of Montgomery on the corner of Perry and Grove streets where I now reside and all the household and kitchen furniture, horses and carriage, cows, etc., and debts due to me or coming to me, or other evidences of debt, bonds or obligations which I may hold or do hold at the time of my death, or cash or money on hand, for and during the term of her natural life; and after her death I give, devise and bequeath the same to my three sons, Henry, Alfred and Andrew J., during the term of their natural lives and then to the children that each may have surviving him." That of the bonds which were left by the testator, there were $19,000 of them which came into the hands of Henry Bethea as executor of the testator's last will and testament, and that upon the settlement of the estate it was decreed that Henry Bethea should turn over and deliver to Eugenia V. Bethea the said $19,000 of bonds. That notwithstanding this decree these bonds or their proceeds were in the hands of said Henry Bethea at the time of the filing of this bill. It was further averred that Alfred Bethea, one of the three beneficiaries under the second item of the will died in 1882, subsequent to the final settlement of the estate of Henry Bethea, as executor, and that the plaintiffs are the only children of said Alfred Bethea, and as such children are now the beneficiaries to the extent of a one-third interest in the funds now in the hands of Henry Bethea arising from the sale of said bonds, subject only to the falling in of the life estate of Eugenia V. Bethea. It was then averred in the bill as follows: "That Eugenia V. Bethea is without means except her life interest in the property devised to her in the will, and is wholly unable to secure your orators their ultimate interest in said fund. That Henry Bethea has converted the securities and appropriated the proceeds to his own uses and purposes, and has not kept the same separate and distinct from his own proper funds. That while he owns some property, most of it is held on the limitations declared in the will and he is considerably indebted; and your orators aver it is a matter of grave doubt whether said Henry would be able to respond to your orators when they shall have become entitled to their interest in said fund. Orators aver upon advice, that whether said Henry Bethea originally held said securities as an executor, or as trustee, or whether he failed to turn the same over, or, turning the same over subsequently acquired them from said Eugenia V. Bethea, that he is at all events liable to account personally for the same or the value thereof, and that your orators have the right to cause their interest therein to be secured."

Eugenia V. Bethea and Henry Bethea were made parties to the bill, and the prayer of the bill was that Henry Bethea be required to "execute bond with security, conditioned so as to secure your orators their interest in said fund. And in default of such security, that your honor will ascertain the amount for which said Henry Bethea is liable to account, and will cause the same to be paid into court by him, or in default thereof that a moneyed decree be rendered against him, and that payment be enforced. That said fund be invested on the trusts set forth in said will, that is to say, the interest to be paid to the life tenant, with remainder as provided in the second item of the will."

To this bill the defendants demurred upon the following grounds:

(1) That it appears in and by said bill that the said complainants have no vested interest in the subject of the said suit, the funds sought to be secured being by the will of the said T. B. Bethea, deceased, limited to this respondent for her life and to the three sons of said T. B Bethea for the term of their lives and "then to the children that each may have surviving them," under which limitation only those children can take any interest who are living on the death of the three sons of said T. B. Bethea deceased.

(2) That it is not averred or shown in and by said bill that complainants have any vested interest in the property which is the subject of said suit.

(3) That said bill shows that the said complainants are only entitled contingently upon surviving the three sons of the said testator, and then only to an equal per capita share with all the children of the said three sons so surviving, and that said bill does not show how many children there are who stand in their situation to share with said complainants.

(4) That said bill is uncertain because it furnishes no data by which the interest of complainants in the subject of the suit may be ascertained.

(5) That said bill shows that complainants have no vested interest in the subject of litigation.

Eugenia V. Bethea also filed the following plea to the said bill "This respondent says the said complainants ought not to have or maintain the aforesaid bill against her because she says: That after the delivery to her of the said bonds and securities as alleged in said bill and their reduction to cash, to wit, on the 4th day of February, 1890, the said T. B. Bethea one of the complainants in this suit and one Mamie Bethea obtained and borrowed of this respondent the sum of one thousand dollars of said funds and executed therefor their receipt and contract substantially in the following words and figures, viz.: 'Received, Montgomery, Ala., Feb'y 4th, 1890, of Mrs. T. B. Bethea, one thousand dollars, borrowed money, and hereby promise to return the same in twelve months from date with 8% added. T. B. Bethea, Mamie Bethea.' That neither the said borrowers or any one for them have ever returned or paid to this respondent the said money so borrowed or any part thereof, and that they refuse to repay the same to respondent. And respondent pleads this fact in bar of the right of the said complainants to maintain their said bill against her; and avers that the said sum of one thousand dollars with interest on part of said...