Braley v. Spragins, 8 Div. 153.

• Citation: 221 Ala. 150,128 So. 149
• Decision Date: 17 April 1930
• Docket Number: 8 Div. 153.
• Parties: BRALEY v. SPRAGINS ET AL.
• Court: Alabama Supreme Court

128 So. 149

221 Ala. 150

BRALEY v. SPRAGINS ET AL.

8 Div. 153.

Supreme Court of Alabama

April 17, 1930

Appeal from Circuit Court, Madison County; Paul Speake, Judge.

Bill in equity by Robert E. Spragins and Addison White, as trustees for Georgia May Harris and Lula H. Glant, against Joseph M Braley, for construction of the will of Ellen L. Weaver deceased. From a decree overruling a demurrer to the bill respondent appeals.

Reversed and remanded.

R. C. Brickell, E. D. Johnston, and Douglass Taylor, all of Huntsville, for appellant.

Watts & White and Robert E. Spragins, all of Huntsville, for appellees.

THOMAS J.

The cause is for decree of construction of the will of Ellen Weaver, deceased, for partition according to the construction as affecting the declared interests of the respective parties in said real property described. The trial court has aptly observed and held that the bill, if it may be maintained, was not multifarious, and "has for its ultimate purpose the partition of specific property; and how that property shall be divided or partitioned-what share or interest each party to the suit has-is dependent upon the proper legal construction of that will. The nature and character and extent of the relief granted, by way of partition, is dependent upon the construction of the will, and the allegations of the bill are pertinent and relevant. There is no such mingling of separate and separable matters, no such inconsistency in averments of facts as bases of relief, or in prayers for relief, as to make the Bill multifarious." Dent v. Foy, 204 Ala. 404, 85 So. 709; Lowery v. May, 213 Ala. 66, 76, 104 So. 5; Ford v. Boarders, 200 Ala. 70, 75 So. 398; Wilson v. Henderson, 200 Ala. 187, 75 So. 935; sections 6526, 9333, 9334, Code. "All parties to the Bill as amended are proper, if not necessary parties. Whatever interest Georgia May Harris may have acquired by the will of Ellen L. Weaver, whether a vested remainder, or a contingent remainder, she has effectually conveyed to Spragins and White, as Trustees, 'to manage and control for the use and benefit of the said Georgia May Harris,' so that they have an interest in the subject matter and have a right to know, from a construction of the will which they invite, what is that interest or estate of Georgia May Harris which they are to manage and control. So, too, Lula H. Glant, being mentioned in the Weaver will as interested in this property, as survivor of Mrs. Braley, as tenant for life, with a power of disposition, has an interest in the subject-matter of the construction of the will and the proper partition of the property, and in whether or not the deed from Mrs. Braley to her husband was effectual to divest her (Mrs. Glant's) interest. And of course Respondent is interested, because in any event, under the allegations of the bill, he is the owner of a half interest in the property. It is well settled that in suits for partition all parties in interest should be brought before the Court, and that the owners of the various interests should be so represented in Court as that the decree of partition should be effectual and binding on them. Code, Section 9333; Wood v. Barnett, 208 Ala. 295, 94 So. 338; McWhorter v. Cox, 209 Ala. 233, 96 So. 71." See, also, Hodge v. Joy, 207 Ala. 198, 92 So. 171; 47 Corpus Juris, p. 365, § 230, and cases there cited.

"It is clear to the Court that Georgia May Harris would be a proper party to the suit. *** She is certainly interested in the construction of the will, and she either has a vested remainder interest in the property, or an interest contingent on whether Mrs. Braley has effectually exercised the power of disposition given to her, and contingent on whether Mrs. Glant will, during her lifetime, exercise the power of disposition given to her. But whatever that interest is, she has conveyed it to Spragins and White as Trustees, to manage and control for her use and benefit; thus placing in them the legal title to her interest. (47 Corpus Juris, p. 345, § 185)"-was the observation of the trial court.

Is it necessary, then, that her admitted equitable interest before the court be represented by her; or may not her trustees be relied on to protect her interest?

Is it apparent that all necessary parties in interest are before the court? It is apparent that all parties before the court are proper parties. As to necessary parties, it is declared generally that when a suit is by a trustee for the recovery of trust property, or to reduce it to possession, and it in no wise affects his relations with his cestui que trust, the latter need not be made a party. Section 5707, Code; Carbon Hill v. Marks, 204 Ala. 622, 86 So. 903; Teal v. Pleasant Grove Union, 200 Ala. 23, 75 So. 335; Lebeck v. Fort Payne Bank, 115 Ala. 447, 22 So. 75, 67 Am. St. Rep. 51; Carey v. Brown, 92 U.S. 171, 23 L.Ed. 469. The general rule is that in suits respecting and affecting the trust property, brought by or against the trustee, the cestui que trust, as well as the trustee, is a necessary party. See, also, 1 Daniell Ch. Pl. & Pr. (4th Ed.) p. 257; 47 C.J. 369; Modern Equity Proc. § 70, p. 884.

In Chattanooga Savings Bank v. Crawford, 206 Ala. 530, 91 So. 316, there is adherence to the established rule that in a court of law the trustee is regarded as the owner of the trust property and therein and thereby represents his cestui que trust; but in equity the cestui que trust is regarded as the owner and is a necessary party in suits affecting the trust estate. This is the rule followed in Town of Carbon Hill v. Marks, 204 Ala. 622, 86 So. 903, under the authority of Lebeck v. Fort Payne Bank, supra.

And in Carey v. Brown, 92 U.S. 171, 172, 23 L.Ed. 469, Mr. Justice Swayne observed of the rule and its exceptions: "The general rule is, that in suits respecting trust-property, brought either by or against the trustees, the cestuis que trust as well as the trustees are necessary parties. Story's Eq. Pl., sect. 207. To this rule there are several exceptions. One of them is, that where the suit is brought by the trustee to recover the trust-property or to reduce it to possession, and in no wise affects his relation with his cestuis que trust, it is unnecessary to make the latter parties. Horsley v. Fawcett, 11 Beav. 569, was a case of this kind. The objection taken here was taken there. The Master of the Rolls said, 'If the object of the bill were to recover the fund with a view to its administration by the court, the parties interested must be represented. But it merely seeks to recover the trust-moneys, so as to enable the trustee hereafter to distribute them agreeably to the trusts declared. It is, therefore, unnecessary to bring before the court the parties beneficially interested.' Such is now the settled rule of equity pleading and practice. Adams v. Bradley, 12 Mich. 346; Ashton v. Bank, 3 Allen [Mass.] 217; Boyden v. Partridge, 2 Gray [Mass.] 191; Swift v. Stebbins, 4 Stew. & P. [Ala.] 447; Association, etc., v. Beekman, 21 Barb. [N. Y.] 565; Alexander v. Cana, 1 De G. & Sm. Ch. 415; Potts v. The Thames Haven and Dock Co., 7 Eng. Law & Eq. 262; Story v. Livingston, 13 Pet. 359. Where the want of parties appears on the face of the bill, the objection may be taken by demurrer. Where it does not so appear, it must be made by plea or answer."

A question raised by the demurrer is whether Georgia May Harris is a necessary party. The demurrer indicates her absence in the pleading, and maintains that under the averred facts she is a necessary party. Hall v. Holly (Ala. Sup.) 127 So. 164; Nelson v. Wadsworth, 171 Ala. 603, 55 So. 120; Chambers v. Wright, 52 Ala. 444. Demurrer to the bill was overruled; hence this appeal.

The case made by the bill, briefly stated, is: Miss Ellen Weaver, who died January 1, 1915, owned at the time of her death a one-half undivided interest in the real estate situated in the city of Huntsville, which is the subject of this suit and specifically described in the bill; the other one-half interest being owned by her sister, Ida W. Braley. Miss Ellen L. Weaver died testate and her will was duly probated, by which she devised her said interest in the property to her two sisters, Lula H. Glant, one of the complainants (referred to in the will as Lula Weaver Johnson), and Ida Braley (referred to in the will as Ida Weaver Williams), for life. And the will further provided that upon the death of either sister, the other should take the interest of the deceased sister, and at the death of the last survivor, the property should go to Miss Weaver's niece, Georgia May Harris; provided that the life tenants, sisters of Miss Weaver, were given full power of disposition during the time of their lives. The pertinent provisions of that will are:

"2. I give, devise and bequeath to my sisters, Ida Weaver Williams and Lula Weaver Johnson, equally, share and share alike, all property, real, personal or mixed of which I may die seized and possessed, to have and to hold during the term of their natural lives, and upon the death of either, the survivor is to take the share of her deceased sister.

"3. Upon the death of both of my said sisters named in the last preceding item of this my will, then such part of my property, real, personal or mixed, as they may not have disposed of during their lives, I give, devise and bequeath to my niece, Georgia May Harris, but my sisters, Ida Weaver Williams and Lula Weaver Johnson are vested with full power of disposition over said property during the time of their lives."

As to the rights of Mrs. Glant (and those formerly of Mrs. Braley deceased), it is averred: "Complainants are advised that by said will, the two sisters of testatrix, referred to as Ida Weaver Williams and Lula Weaver Johnson, each took a...