Brittain v. Ingram

• Decision Date: 11 April 1968
• Docket Number: 7 Div. 753
• Citation: Brittain v. Ingram, 282 Ala. 158, 209 So.2d 653 (Ala. 1968)
• Parties: H. Maddox BRITTAIN et al. v. James C. INGRAM et al.
• Court: Alabama Supreme Court

Page 653

209 So.2d 653

282 Ala. 158

H. Maddox BRITTAIN et al. v. James C. INGRAM et al.

7 Div. 753.

Supreme Court of Alabama.

April 11, 1968.

Hooton & Hooton, Roanoke, for appellants.

Dempsey & Hardegree, Ashland, for appellees.

PER CURIAM.

This case involves an interpretation of the last will and testament of John H. Ingram, Sr., deceased, and from a final decree with respect thereto this appeal was taken.

The suit originated in the Circuit Court of Clay County, in Equity, wherein the verified complaint of appellees sought removal of the administration of the estate of John H. Ingram, Sr., from the Probate Court of Clay County into the Circuit Court of said county, in Equity, and a construction of the will of said decedent. A copy of the will was attached to the complaint, along with copies of correspondence between appellees and the executor.

The will had been admitted to probate in the Probate Court of Clay County in 1961 and the administration of said estate was pending in said court when the executor, H. Maddox Brittain, filed his accounts and vouchers for a final settlement of the estate. The accounts were filed July 20, 1965.

Upon the filing of said verified petition or complaint, an order was made and entered by the Circuit Court, August 10, 1965, removing said administration to said Circuit Court, in Equity. Respondents (appellants) filed a motion to re-transfer said cause to the Probate Court, and also filed a demurrer to the bill of complaint. At a hearing on the motion to re-transfer, testimony (not incorporated in the transcript) was offered. The trial court denied the motion to re-transfer and also overruled the demurrer to the complaint. Demurrer was overruled after the complaint was amended by offering to do equity. Respondents filed an answer to the amended bill of complaint.

The cause was subsequently set for trial and when it came on to be heard, was argued and submitted. The case was taken under advisement and on August 5, 1966, a final decree was rendered from which, as we have noted, respondents have taken this appeal.

It appears from the evidence that the deceased testator had been married three times and had three daughters, all living, by his first wife. They were Mrs. Wilian I. Brittain, wife of one of the executors; Ivilyn I. Lowery and Eloree I. Dominey. These three daughters, together with Mrs. Hettie B. Ingram McCray (widow of testator), H. Maddox Brittain, and John H. Ingram, executors under the will, are the appellants. Decedent had two children by his second wife. These two children, James C. Ingram and Isabelle I. Wilbur, are appellees. He had no children by his third wife, who is now Mrs. McCray.

Decedent owned his home in the town of Lineville, Alabama, and, among other things, he undertook to dispose of his home by the terms of his last will and testament. This disposition of the home is the subject of this litigation. Without dispute, Mr. Ingram was the author and drafter of his own will without the aid of legal advice.

When the petition for final settlement of the estate was filed, appellees questioned by correspondence with the executors the disposition of the home place. It was the contention of the executors that the three daughters by the first marriage were willed the home place to be theirs absolutely and in fee simple. The two children by the second marriage (appellees) disagreed with this contention. Correspondence indicating the disagreement was attached to the verified amended complaint.

Primarily, the dispute concerns itself with the interpretation of Sections 8 and 11 of the will. We quote these two sections:

'Sec. 8. My will is that, in case my wife is not living at the time of my death, the un-paid and un-used benefit gifts bequeathed to her, and all other un-paid benefit gifts named herein shall remain and revert to the proceeds of my estate and shall be paid equally only to my then living children at the time of final settlement of my estate. This division of gift benefits to my children is in addition to the gifts to them already made herein and only to the children living at final settlement of my estate.'

'Sec. 11. My will is that I give and devise my said home, lot and house thereon, in Lineville, Ala., to own and hold in fee simple, to my three daughters by my first wife, namely Wilian Ingram Brittain, Ivilyn Ingram Lowry and Eloree Ingram Dominey, this devise to become and to operate only after the tenure and hold of said home by my widow is terminated and or released by my widow, Hettie B. Ingram, for a valuable consideration of about $2000.00 dollars; my said three daughters, or either two or one of them, when living, may keep, use and own said home, as they or she may think best, for their own benefit, or place proceeds of sale to the credit of my estate for division as directed in Section #8 herein.

'This gift and devise is made to my said three daughters for love and to keep said home for the use and the kin of my family; and if any of said daughters is not living at time of the final settlement of my estate, then my executors are authorized to sell and dispose of said home, lot and house thereon, according to law and pay the proceeds of sale equally to my living children per Section #8 herein; and provided further if said home is not already disposed of before my death.'

Following the death of testator, in accordance with the terms of the will the three daughters by the first marriage paid Mrs. Hettie B. Ingram, the widow, the sum of $2,000 for a release of her claim on said home.

It was the contention of appellees that the decedent intended to provide by the terms of the will for a divisions of the proceeds from the sale of the home between 'his then living children at the time of final settlement' of his estate, and that the three daughters by the first marriage, so long as any of them lived, would have the use and management and control of the same, with the discretion to determine whether or not they would continue to keep same, or let it be sold and the proceeds divided between his 'then living children,' and in the event none of his children were living at the time of final settlement, then the executors were to sell the property and divide the proceeds between his 'then living children.'

It was the contention of respondents that Section 8 of the will was conditioned in the event of John Ingram's wife being deceased at the time of his death; that as she was living at such time Section 8 is without force and effect. Appellants further argue that Section 8 refers only to 'monetary gifts,' and was not intended to refer to the home place in the event it was sold. Their main contention both in the lower court and on this appeal is to the effect that under the terms of the will the home place, upon the death of testator, vested in the three daughters by the first marriage in fee simple.

The transcript reveals that appellants listed thirty assignments of error for reversal of the decree rendered by the lower court. In appellants' brief, however, only Assignments 22, 23, 24, 25, 26 and 27 are specifically mentioned. Indirect reference is made to Assignment 11 where it is contended by appellants that the Circuit Court erred in overruling Ground 3 of the motion to re-transfer the administration of the estate to the Probate Court. Although no specific reference is made, there is also indirect reference made to Assignments 13, 14, 15 and 16 wherein appellants assert that the trial court erred in overruling certain grounds of their demurrer.

Further, although appellants set forth three general proposition of law in thier brief, at no point in the argument are these propositions clearly referred to; nor, indeed, do appellants in their argument cite any cases or give any authority in support of their contentions.

Appellees, we think, correctly insist that assignments of error not substantially argued will be deemed waived and will not be considered by the court. Rule 9, Revised Rules of Practice in the Supreme Court, 279 Ala. XXVI, effective June 1, 1955, as amended March 26, 1966. This court will consider of legal efficacy only those assignments insisted on in appellant's brief and sufficiently argued, and adequate specification of errors relied upon is necessary if our review is to be invoked. Smith v. Jackson, 277 Ala. 257, 169 So.2d 21. Assignments of error not so specified and sufficiently argued are deemed to be waived and will not here be considered. State v. Farabee, 268 Ala. 437, 108 So.2d 148; McGehee v. Frost, 268 Ala. 23, 104 So.2d 905; Talbot v. Braswell, 266 Ala. 578, 98 So.2d 7. Accordingly Assignments 2, 3, 4, 5, 6, 7, 8, 9, 10, 12, 18, 19, 20, 21, 28, 29 and 30 will not be considered.

Assignments of Error 11, 13, 14, 15 and 16, as before mentioned, are indirectly referred to in appellants' brief. It is contended in Assignment 11 that Ground 3 of the motion to re-transfer should have been granted as no special equity was shown in the cause. Also it is insisted in Assignment 13 that Ground 1 of the demurrer to the amended bill of complaint should have been sustained for there was no special equity warranting the transfer of the estate to the Circuit Court.

Also it is insisted that:

'Demeurrer (sic) #12 should have been sustained, its overruling error, because as shown in said Demurrer (sic) for no where in said Exhibit 'A', the Will is there any mandatory requirements as to the 3 daughters of the 1st marriage, and there is only an Option therein for them if they so desired;'

The foregoing assertion, quoted verbatim from appellants' brief, is not clear to us. (Assignment 14)

'Demeurrers (sic) #17 and 18 show that the allegations of paragraph 4 of the Bill of complaint, * * * and as shown by the Will, Exhibit 'A' to the Complaint are inconsistent (sic) and incongrouous (sic) as to the allegations contained in paragraph 4 of the bill and when considered with the said paragraphs 8 and 11 of the Will or Exhibit ...