Birmingham Trust Nat. Bank v. Garth

• Decision Date: 30 June 1955
• Docket Number: 8 Div. 789
• Citation: 263 Ala. 121,81 So.2d 590
• Parties: BIRMINGHAM TRUST NAT'L BANK v. Ethel Mae GARTH et al.
• Court: Alabama Supreme Court

Page 590

81 So.2d 590

263 Ala. 121

BIRMINGHAM TRUST NAT'L BANK v. Ethel Mae GARTH et al.

8 Div. 789.

Supreme Court of Alabama.

June 30, 1955.

Smyer, Smyer, White & Hawkins, Birmingham, and Woodroof & Woodroof, Athens, for appellant.

Maurice F. Bishop and Robt. S. Richard, Birmingham, and D. U. Patton, Athens, for appellees.

MERRILL, Justice.

This is an appeal from a decree of the Circuit Court of Limestone County, in Equity, overruling demurrer to the bill of complaint as amended, to terminate a trust. The complainants (appellees) are Ethel Mae Garth, the daughter of the testator, and the six children of Ethel Mae Garth. The respondent-appellant bank is the trustee under the will of the testator.

To use the language in appellees' brief, 'The bill seeks to terminate the trust created under the will, and a declaration of rights of the parties thereunder.' The testator, L. C. Hightower, died on June 2, 1934, and the will was admitted for probate in Limestone County on June 28, 1934. The administration of the trust estate was transferred to and is pending in the circuit court, in equity.

The verified bill, with the will attached as an exhibit, shows that all the complainants are over 21 years of age except the youngest child of Ethel Mae Garth, who is over 18 and has had her disabilities of nonage removed and would become 21 on December 13, 1954; that the widow of L. C. Hightower, deceased, is dead; that a specific legacy to a sister of the testator was terminated by her death; that a specific legacy of $25 per month to a niece was terminated by her renunciation and release of same; that the only reason for the existence of the trust is a provision in the will providing for the payment of $500 per month to his daughter, Ethel Mae Garth, during her life; that Ethel Mae Garth is willing to renounce her interest in the estate; that complainants have requested respondent to terminate the trust and divide the corpus as provided in the will and respondent refuses so to do.

The respondent filed a demurrer consisting of 101 grounds which was overruled.

Item 3(f) of the will provided in pertinent part:

'Upon the death of my said daughter, Ethel Mae Garth and upon the arrival of her youngest child at the age of twenty-one years it is my will and desire that my said trustee shall distribute all the rest and residue of my estate to the children of my daughter, Ethel Mae Garth, who shall then survive her or to the descendants of any of her said children who may not then be living, share and share alike, per stirpes.'

This case would present some close and interesting questions if we reached them, but under the allegations of the bill, which are construed more strongly against the pleader, we do not reach the real questions which are capably argued by counsel for the parties.

The theory of complainants' bill is that the renunciation by Ethel Mae Garth of all her life interests in a part of the income from the trust, accelerates the trust, so that it can be terminated immediately with the same result as if she had died. This theory was also followed by the trial court as his opinion states: 'The purpose of the trust will have been fulfilled in December, 1954 with the renunciation of Ethel Mae Garth and her youngest child becoming twenty-one years of age.'

Complainants have no existing justiciable controversy with respondent unless there has been a renunciation by Ethel Mae Garth. Appellees in brief make the categorical statement, '* * * and Ethel Mae Garth has renounced her interest in the trust and requested a termination of the trust estate.' The statement quoted from the opinion of the trial court in the preceding paragraph shows that he, too, treated the cause as if there had been a renunciation by Ethel Mae Garth. The reply brief of appellant is just as emphatic when it states, 'Mrs. Garth has not renounced her life estate.' But has such a renunciation been alleged in the bill? It appears that there has been a deliberate and studied effort not to so allege. Paragraph 9 of the original bill stated in part:

'9. As a further alternative, complainants aver that Ethel Mae Garth is willing to renounce all of her interest in and to said trust estate and all income therefrom contingent upon a distribution of said trust estate as provided in the Last Will and Testament of L. C. Hightower, deceased.'

One of the several grounds of demurrer to the original bill was: 'It affirmatively appears from the Bill of Complaint that Ethel Mae Garth, a life tenant under the trust, has not relinquished her rights under the trust.'

Subsequently, the bill was amended by amending paragraph 9 to read as follows:

'9. As a further alternative, complainants aver that Ethel Mae Garth is willing to renounce all her interest in and to said trust estate and all income therefrom and to execute all proper instruments to effect such renunciation and release in order to terminate said trust contingent upon a distribution of said trust estate as provided in the Last Will and Testament of L. C. Hightower, Deceased. Complainants aver that upon such renunciation by the said Ethel Mae Garth that the remaining complainants constitute and are the sole parties in interest and beneficiaries and that there are no other interested parties, contingent or otherwise, and that said trust estate should be terminated and distributed as provided in the Last Will and Testament of L. C. Hightower, Deceased. Complainants aver that it is manifest from said Last Will and Testament of L. C. Hightower, Deceased, that it was the intention of the testator that the children of Ethel Mae Garth should take upon the occurrence of any event which removes the prior estate of the said Ethel Mae Garth and complainants aver that the renunciation and release of the said Ethel Mae Garth effectively removes and expunges her prior life interest in a part of the income of said estate and that the remaining complainants are entitled to have the estate distributed to them. And complainants aver that the renunciation and release of the interest of Ethel Mae Garth in and to said estate and a part of the income therefrom accelerates the time for the distribution of said estate and eliminates the interest, if any, of any alternative substitutionary remaindermen. Complainants aver that the children of Ethel Mae Garth have established a trust for her under which she will be paid and receive the sum of $500.00 per month for the balance of her life upon the distribution of the corpus of the trust to them and that the purposes of said will, insofar as the complainant Ethel Mae Garth is concerned, therefore, have been fully and effectively accomplished.'

The same grounds of demurrer were reassigned to the bill as amended together with many others, three of which again pointed out that a renunciation by Ethel Mae Garth had not been alleged.

We quote from several of our cases which deal generally with the requirements of equity pleading.

"Bills in chancery must set forth, not the evidence, but every material averment of fact necessary to complainant's right of recovery. So complete must be the averments of fact, that on demurrer, or decree pro confesso, the court can, without evidence, be able to perceive and affirm that complainant is entitled to the relief prayed. Relief can only be granted on allegations and proof; and the latter will never be allowed to supply omissions or defects in the former. * * *" Stone, J., in McDonald v. Mobile Life Ins. Co., 56 Ala. 468, and followed in Brue v. Vaughn, 241 Ala. 322, 2 So.2d 396, 397.

'Material averments in a bill should be made directly and positively, and not left to be deduced by inference from other averments. Pinkston v. Boykin, 130 Ala. 483, 30 So. 398.' Terrell v. Marion County, 250 Ala. 235, 34 So.2d 160, 164.

'In speaking of equity pleading in general this court has stated 'that a bill in equity must show with accuracy and clearness all matters essential to plaintiff's right to relief. These matters must not be made to depend upon inference, nor will ambiguous averments of them be accepted as sufficient.' * * *.' Gwin v. George, 252 Ala. 318, 319, 40 So.2d 861, 862.

In Collins v. Thompson, 259 Ala. 82, 65 So.2d 491, 493, we said:

'* * * '* * * a bill in equity must set forth, not the evidence, but every material averment of fact necessary to complainant's right of recovery. So complete must be the averment of facts that on demurrer or decree pro confesso, the court can, without evidence, be able to perceive and affirm that complainant is entitled to the relief prayed. McDonald v. Mobile Life Ins. Co., 56 Ala. 468.' The bill under consideration falls short of the standard quoted.'

We must agree with appellant that the bill as amended does not meet the requirements stated in these cases as to the direct and positive allegation of the renunciation of her interests by Ethel Mae Garth. Also 'the bill must clearly show the title and interest of the complainant in the subject-matter of the suit and a present right to sue,' Hicks v. Biddle, 218 Ala. 2, 117 So. 688, 690. A clear allegation of Mrs. Garth's renunciation is required to give complainants a 'present right to sue'...