Boutwell v. Drinkard, 4 Div. 788

• Decision Date: 28 February 1935
• Docket Number: 4 Div. 788
• Parties: BOUTWELL et al. v. DRINKARD et al.
• Court: Alabama Supreme Court

160 So. 349

230 Ala. 212

BOUTWELL et al. v. DRINKARD et al.

4 Div. 788

Supreme Court of Alabama

February 28, 1935

Rehearing Denied March 28, 1935

Appeal from Circuit Court, Coffee County; W.L. Parks, Judge.

Bill in equity by Myrtle Drinkard and Johnnie Locklier against Claude Boutwell, individually as administrator of the estate of Alonza Boutwell, deceased, and as administrator of the estate of Mittie Boutwell, deceased, Hartford Accident & Indemnity Company, and others. From a decree overruling demurrers to the bill, respondents appeal.

Affirmed in part, and reversed and remanded in part.

Jack L Giddens and Wilkerson & Brannen, all of Troy, and Rushton Crenshaw & Rushton, of Montgomery, for appellants.

Brassell & Rowe, of Troy, and C.L. Rowe, of Elba, for appellees.

KNIGHT Justice.

Bill by Myrtle Drinkard and Johnnie Locklier against Claude Boutwell as administrator of the estate of Alonza Boutwell, deceased, and others, seeking, among other things, to hold the said Claude Boutwell, and the surety on his bond, as administrator of the estate of said decedent, accountable to the estate of Mittie Boutwell, deceased, as for the conversion of the proceeds of certain insurance policies, in which the said Mittie Boutwell was the named beneficiary, for the removal of the said Claude Boutwell as administrator of the estate of Alonza Boutwell, deceased, and as administrator of the estate of said Mittie Boutwell, deceased; to impress a trust in favor of complainants upon certain funds on deposit in the Citizens' Bank & Trust Company, of Montgomery, Ala., "appearing to the credit of the estate of Alonza Boutwell"; to hold the Hartford Accident & Indemnity Company, surety on the bond of the said Claude Boutwell as administrator of the estate of Alonza Boutwell, deceased, liable to account, "as executor de son tort, or trustee ex maleficio" to the estate of Mittie Boutwell, deceased, for the proceeds of the said insurance policies; that it be decreed that the said Claude Boutwell and the said Hartford Accident & Indemnity Company committed a devastavit in depositing the moneys of the estates of Alonza Boutwell and Mittie Boutwell in the banking institution of W.B. Folmar & Sons, and in the Citizens' Bank & Trust Company, of Montgomery, Ala., and that thereby they became, jointly and severally, guarantors of the safety of said funds; that the court ascertain and allow a reasonable fee to the solicitors of complainants for their services in the prosecution of this litigation, and tax the same as a part of the cost in the cause; and for general relief.

It appears from the allegations of the bill, as amended, that the said Alonza Boutwell and Mittie Boutwell were husband and wife; that both were dead at the time the bill was filed; that the said Claude Boutwell was on the 27th day of December, 1928, appointed administrator of the estate of Alonza Boutwell; that on the 25th day of January, 1929, the respondent Hartford Accident & Indemnity Company became surety on his bond as such administrator.

That on the 28th day of January, 1929, the said Claude Boutwell, on his own application, was appointed administrator of the estate of Mittie Boutwell, deceased, but it is not averred in the bill who is his surety on his bond as administrator of said last-named estate.

On October 28, 1929, the said Claude Boutwell, as administrator of Alonza Boutwell's estate, made a report to the probate court, showing cash in his hands of $21,293.22 to the credit of said estate.

It appears that before the filing of the bill in this cause the administrations of the estates of Alonza Boutwell and Mittie Boutwell were removed from the probate court of Coffee county to the circuit court of said county, and were pending in said court at the time the bill was filed in this cause.

It appears from the bill that the Hartford Accident & Indemnity Company, as a prerequisite to becoming surety on the bond of Claude Boutwell, as administrator of the estate of Alonza Boutwell, exacted of the administrator joint control or management of the assets of said estate.

It appears from paragraph six of the amended bill that at the time of the death of said Alonza Boutwell, three insurance policies were in force on his life, in which his wife, the said Mittie Boutwell, was the beneficiary; that the said Claude Boutwell, as administrator of the estate of said Mittie Boutwell, deceased, collected the insurance money, amounting in the aggregate to $10,991.11, "but that instead of reporting the same as assets of the estate of Mittie Boutwell, deceased, he reported the said sums of money to the Probate Court of Coffee County, Alabama, as being assets of the estate of Alonza Boutwell, deceased, and the money so derived was taken in custody by the said Claude Boutwell, acting in his capacity as the administrator of the estate of Alonza Boutwell, deceased, and the management of, and control over the same was thereafter exercised jointly by the said administrator and the said Hartford Accident & Indemnity Company, acting through its designated agent, and the same, together with other money properly belonging to the estate of Alonza Boutwell, deceased, was subjected to the terms of the private contract or agreement between the parties."

It is further averred that the said Claude Boutwell and the said Hartford Accident & Indemnity Company by so receiving, and jointly controlling and managing the money as assets of the estate of Alonza Boutwell, deceased, converted the said sum of $10,991.11 belonging to the estate of Mittie Boutwell, deceased, and in so doing became liable to account to some of the heirs or distributees of said estate; the said Claude Boutwell individually, and as administrator of said estate, and the said Hartford Accident & Indemnity Company as executor de son tort.

It is further charged that the said Claude Boutwell, acting in his capacity as the administrator of the estate of Alonza Boutwell, deceased, and the said Hartford Accident & Indemnity Company, while in joint control of, and jointly managing, the assets of the estate of Alonza Boutwell, deceased, placed the "whole of said sums of money on deposit with W.B. Folmar and Sons, Bankers, Troy, Alabama," under an agreement whereby the same could be withdrawn therefrom only by check of Claude Boutwell, as administrator of the estate of Alonza Boutwell, deceased, countersigned by the designated agent of the Hartford Accident & Indemnity Company; that thereafter the said W.B. Folmar & Sons became the Citizens' Bank & Trust Company of Montgomery, Alabama, and that said money was allowed to continue on deposit with said bank under its new name, under the terms of said agreement as to withdrawals, and while so on deposit, the Citizens' Bank & Trust Company of Montgomery suspended, and has not since reopened, and that complainants have been "deprived of the use and benefit of the money appearing therein to the credit of the estate of Alonza Boutwell, deceased, or their interest therein, the same has been lost to them."

In an amendment to the amended bill, added by way of an alternative averment, it is charged that, while the said Claude Boutwell and the said Hartford Accident & Indemnity Company were so managing and controlling the assets of the estate of Alonza Boutwell, deceased, the said Claude Boutwell procured the appointment of himself as the administrator of the estate of Mittie Boutwell, deceased; that thereupon, the said Claude Boutwell, acting as administrator of the estate of Alonza Boutwell, deceased, and as administrator of the estate of Mittie Boutwell, deceased, applied to and received from certain named insurance companies the aggregate sum of $10,991.11, the said sum representing the proceeds of insurance policies issued by the named companies upon the life of said Alonza Boutwell, in each of which policies the said Mittie Boutwell was named as the beneficiary; that the "checks representing the proceeds of said insurance policies were made payable to the said Claude Boutwell, as administrator of Alonza Boutwell, and as administrator of the estate of Mittie Boutwell, under an arrangement made and had by and between the said Claude Boutwell, as administrator of said estates, and the several insurance companies."

It is then charged that it was the duty of said Claude Boutwell to report and return one-half of said money into the estate of said Mittie Boutwell, deceased, "for the reason that said sums aggregating $10,991.11 were collected by him jointly for the estate of Mittie Boutwell and for the estate of Alonza Boutwell, one-half to each of said estates." It is then averred that, "notwithstanding his said duty, as aforesaid, he appropriated all of said sum of $10,991.11 to the estate of said Alonza Boutwell, and that he, the said Claude Boutwell, as such administrator, and the said Hartford Accident & Indemnity Company, as his surety, exercised joint control over the said funds, and deposited the same in the said bank, and lost the same as hereinbefore and as hereinafter alleged."

It nowhere appears in the bill when the said Alonza Boutwell, or the said Mittie Boutwell died, whether the husband survived the wife, or the wife survived the husband.

We think the foregoing statement of the facts appearing in the bill will suffice for the purposes of the appeal.

It is apparent at the threshold that the first question to be determined in this case is, Do the averments of the bill as first amended show that the moneys collected upon the several policies of insurance upon the life of Alonza Boutwell were assets of the estate of Mittie Boutwell, or of her deceased husband? If the money collected under the policies belonged to the estate of the husband, Alonza Boutwell, deceased, then...