Binford v. Penney, 6 Div. 31

• Decision Date: 24 November 1950
• Docket Number: 6 Div. 31
• Citation: 49 So.2d 665,255 Ala. 20
• Parties: BINFORD v. PENNEY.
• Court: Alabama Supreme Court

Page 665

49 So.2d 665

255 Ala. 20

BINFORD v. PENNEY.

6 Div. 31.

Supreme Court of Alabama.

Nov. 24, 1950.

Rehearing Denied Jan. 11, 1951.

Wm. S. Pritchard, Victor H. Smith and Pritchard & McCall, all of Birmingham, for appellant.

Lange, Simpson, Robinson & Somerville, of Birmingham, for appellee.

STAKELY, Justice.

This case deals with a situation where removal of a coexecutor is sought on the ground in effect that after his appointment he filed a bill in his individual capacity to contest the second codicil of the will. The case comes to this court on appeal by Caryl Penney Binford, a devisee and legatee under the will of J. E. Penney, deceased, from the order of the equity court sustaining demurrers to and dismissing a petition filed by her in that court seeking to remove Paul M. Penney (appellee) as the coexecutor of the will of J. E. Penney, deceased.

J. E. Penney died testate on May 17, 1948, leaving a substantial estate consisting of both lands and personal property. The will consisted of an original will dated May 7, 1944, first codicil dated October 24, 1945 and a second codicil dated April 29, 1946. On petition of Birmingham Trust National Bank (formerly Birmingham Trust and Savings Company), the will and the codicils thereto were probated in the Probate Court of Jefferson County on May 15, 1948. On separate petitions thereafter filed in the probate court letters testamentary were issued by that court to Paul M. Penney and to Birmingham Trust National Bank, who were named as executors in the will. The administration of the estate was removed to the circuit court in equity on the petition of Caryl Penney Binford on June 15, 1948. After the removal to the circuit court in equity Paul M. Penney and the Birmingham Trust National Bank filed a petition showing the probate of the will in the probate court and filing of petitions in that court by Paul M. Penney and the Birmingham Trust National Bank for letters testamentary, the grant of letters testamentary by the probate court to Paul M. Penney and to the Birmingham Trust National Bank and the removal of the administration to the circuit court in equity. The petition prayed for the issuance of letters testamentary to Paul M. Penney and to the Birmingham Trust National Bank by the circuit court and the approval or confirmation of the previous action of the probate court in issuing such letters.

On July 8, 1948 the Circuit Court of Jefferson County, in Equity, rendered an order on the petition ratifying and approving the issuance of such letters to the aforesaid parties by the probate court and again ordering letters testamentary to be issued to Paul M. Penney and the Birmingham Trust National Bank on the will of J. E. Penney, deceased.

On December 15, 1948 Paul M. Penney, while serving as one of the coexecutors of the will of J. E. Penney, deceased, filed a proceeding in the circuit court in equity to contest the will of J. E. Penney, deceased, in which he specifically contested the validity of the second codicil of the will and sought to have the second codicil set aside. Under the will Paul M. Penney, while serving as executor, was allowed the same rights, powers and duties as granted the trustees under the will, who are also the said Paul M. Penney and the Birmingham Trust National Bank. It was provided that his compensation as joint trustee should be 3% of the gross collection income and if he (Paul M. Penney) handled the renting of and collection of rents from the trust property or any of it, he should receive the usual rental agent's commission.

The original will, after making specific bequests, left the testator's property to the Birmingham Trust National Bank and to Paul M. Penney, as trustees, to distribute the income each month to the following persons and in the following shares. Paul M. Penney 4/7th, Mrs. Caryl Penney Binford 1/7th, Mrs. Binford's daughter 1/7th and Mrs. Binford's son 1/7th. The net income in the above proportions was under the will to be paid to the persons above named for a period of 30 years after which the corpus would be distributed in the shares above indicated. The first codicil made no change in that respect (only specific bequests were changed). The second codicil, the only instrument under attack, purports to make a change only in the share of the net income to be distributed to the beneficiaries (who are the same in any event) during the existence of the trust and in the share of the residuary beneficiaries of the trust, decreasing in each instance the share of Paul M. Penney to 1/2 from 4/7th and increasing the shares of each of the other residuary legatees to 1/6th from 1/7th. No change was made in the terms of the trust or in the personnel or character of the executors or trustees.

On February 3, 1948 Caryl Penney Binford filed her petition as aforesaid in the equity court for the removal of Paul M. Penney as executor. The petition for removal charged that Paul M. Penney should be removed and disqualified from further serving as coexecutor of the will for reasons which may be summarized as follows. By filing the contest Paul M. Penney seeks to increase his interest in the estate and puts unnecessary expense on the estate. As a result he is an unsuitable person to have charge and control of the estate his interest being adverse to his duties as executor. It is further claimed that in his capacity as coexecutor of the will he is duty bound to defend and uphold all the provisions of the will under which he obtained his appointment as coexecutor.

The court sustained the demurrer of Paul M. Penney to the aforesaid petition and dismissed the same as being without equity. On September 6, 1949 the court modified or amended the decree on its own motion by adding a provision taxing the costs incident to the petition against Caryl Penney Binford and authorizing the issuance of execution for the collection thereof. This appeal is prosecuted from the decree as modified.

The contest of the codicil is based on the alleged unsoundness of mind of the testator at the time of the execution of the second codicil. It is filed under the provisions of § 64, Title 61, Code of 1940, which provides for contests by a bill in equity within six months after the admission of the will to probate.

We think it well to set out the statutes which appear to be pertinent. These statutes are designated as §§ 69, 178 and 165, Title 61, Code of 1940. These sections of the code are as follows:

' § 69. No person must be deemed a fit person to serve as executor who is under the age of twenty-one years, or who has been convicted of an infamous crime, or who, from intemperance, improvidence, or want of understanding is incompetent to discharge the duties of the trust. Nor shall any non-resident of the state be appointed as administrator except he be at the time executor or administrator of the same estate in some other state or territory or jurisdiction, duly qualified under the laws of that jurisdiction.'

' § 178. An administrator may be removed, and his letters revoked for his removal from the state; and an administrator or executor may be removed and his letters revoked for any of the following causes:

'Imbecility of mind; intemperance; continued sickness, rendering him incapable of the discharge of his duties; or when from his conduct or character there is reason to believe that he is not a suitable person to have the charge and control of the estate.

'Failure to make and return inventories or accounts of sale; failure to make settlements as required by law; or the failure to do any act as such executor or administrator, when lawfully required by the judge of probate.

'The wasting, embezzlement, or any other maladministration of the estate.

'The using of any of the funds of the estate for his own benefit.

'A sentence of imprisonment in the penitentiary, county jail or for hard labor for the county for a term of twelve months or more.'

' § 165. When, in any proceeding in the probate or circuit court, or other court having equity jurisdiction, the estate of a deceased person must be represented, and there is no executor or administrator of such estate, or he is interested adversely thereto, it shall be the duty of the court to appoint an administrator ad litem of such estate for the particular proceeding, without bond, whenever the facts rendering such appointment necessary shall appear in the record of such case, or shall be made known to the court by the affidavit of any person interested therein.'

It is, of course, settled that a beneficiary has the right to contest a will under § 64, Title 61, Code of 1940. Bromberg v. Bates, 98 Ala. 621, 13 So. 557. But what is the situation where the beneficiary is also an executor? Does the filing of a contest by a beneficiary who is an executor constitute a ground for removal as executor? Our cases hold that the power of the probate court to remove an executor does not extend beyond the ground set forth in the statute. Castleberry v. Hollingsworth, 215 Ala. 445, 111 So. 35; Randle v. Carter, 62 Ala. 95; Marcus v. McKee, 227 Ala. 577, 151 So. 456. In Castleberry v. Hollingsworth, supra, it was pointed out that the words in section 178, supra, 'when from his conduct or character there is reason to believe that he is not a suitable person' does not embrace a situation when the executor has a conflict of interest or adverse claim. This court in Castleberry v. Hollingsworth stressed the statute which is now § 165, Title 61, Code of 1940, which provides for an administrator ad...