Brizendine v. American Trust & Savings Bank

• Court: Alabama Supreme Court
• Writing for the Court: MILLER, J.
• Citation: Brizendine v. American Trust & Savings Bank, 211 Ala. 694, 101 So. 618 (Ala. 1924)
• Decision Date: 26 June 1924
• Docket Number: 6 Div. 129.
• Parties: BRIZENDINE v. AMERICAN TRUST & SAVINGS BANK ET AL.

101 So. 618

211 Ala. 694

BRIZENDINE v. AMERICAN TRUST & SAVINGS BANK ET AL.

6 Div. 129.

Supreme Court of Alabama

June 26, 1924

Rehearing Denied Oct. 16, 1924.

Appeal from Circuit Court, Jefferson County; William M. Walker Judge.

Bill in equity by Frank L. Brizendine, as administrator with the will annexed of the estate of Bettie Brizendine, deceased, and Frank L. Brizendine individually, against the American Trust & Savings Bank, as guardian of Frank L. Brizendine, Jr., and the Octavia White Home for Aged Women. From the decree complainant Brizendine and respondent (cross-complainant) Octavia White Home for Aged Women appeal. Affirmed in part reversed and rendered in part, and remanded.

Gardner J., dissenting.

Martin, Thompson & Turner, of Birmingham, for appellants.

Nesbit & Sadler, of Birmingham, for appellee American Trust & Savings Bank.

Frank S. White & Son and E. C. Crow, all of Birmingham, for appellee Octavia A. White Home for Aged Women.

MILLER J.

Bettie Brizendine, a widow, died on April 8, 1923, in Jefferson county, leaving a last will and testament. It was duly probated in the probate court of Jefferson county. She left only one heir, a son, Frank L. Brizendine, who was by this probate court appointed administrator with the will annexed of the estate.

This is a bill in equity to remove the administration of the estate into the circuit court, in equity, filed by the administrator in his individual and administrative capacity. It seeks to have the estate administered therein, and to have the will construed by the court to aid him in administering the trust and performing the duties imposed on him by it.

The American Trust and Savings Bank, a corporation, as guardian of Frank L. Brizendine, Jr., a legatee and devisee under the will, who is a son of complainant and grandson of testatrix, and the Old Ladies' Home at Woodlawn, a legatee, which is a corporation under the name of Octavia White Home for Aged Women, are made parties defendant.

The Octavia White Home for Aged Women demurred to the bill, which demurrer was overruled by the court.

This is an application to remove the administration of the estate from the probate court into the circuit court in equity. It was filed by the only heir of decedent, and the administrator with the will annexed of the estate; and he is also a legatee and devisee under the will. It avers there has been no final settlement of the estate in the probate court; that in the opinion of the petitioner such estate can be better administered in the circuit court in equity than in the probate court; and the petition is sworn to by the applicant.

Under the Act of 1911, p. 574, § 3, as amended by Acts 1915, p. 738, these averments in the petition, made and sworn to by an heir, devisee, legatee, or administrator with the will annexed, are sufficient to give the circuit court in equity jurisdiction of the administration of the estate, and entitle petitioner to an order of removal of the estate from the probate court to be made by the circuit court, or judge thereof, either in term time or vacation. Parker v. Robertson, 205 Ala. 434, 88 So. 418. In this aspect of the bill there is equity. Then the administrator by the bill seeks an interpretation of the will and instructions of the court in its administration. The will is made a part of the bill. It presents some questions of disputable solution on which legal minds might and do differ in the interpretation of it; and in this aspect of the bill there is also equity. Carroll v. Richardson, 87 Ala. 605, 6 So. 342. The court did not err in overruling the demurrers of this respondent to the bill of complaint.

The guardian of the minor, Frank L. Brizendine, Jr., filed an answer to the bill, and the Old Ladies' Home, known officially as Octavia White Home for Aged Women, filed an answer in the nature of cross-bill. It seeks to have the will of the decedent interpreted so as to give it annually, for seven years, $100 a year, from the rent and income of one-half of the real estate bequeathed to complainant individually, the son of decedent.

The court on final hearing, on pleading, proof, and agreement of the parties, decreed complainant was entitled to relief, construed the will in part contrary to the interpretation desired and contended for by complainant, denied cross-respondent relief, held the bequest to it of $100 per annum for seven years was void, and dismissed the cross-bill. This appeal is prosecuted by complainant and this cross-respondent from that decree, and each assigns errors based on it.

This will was inartificially drawn by an unskilled hand, and this should be considered in its construction, yet the court in construing it should look to the intent of the testatrix to be drawn from the entire instrument, and the testatrix's intent in its interpretation must prevail, if it is not contrary to the statute, or if it is not inconsistent with public policy. Castleberry v. Stringer, 176 Ala. 250, 57 So. 849; 12 Michie's Dig. p. 1017, §§ 227-228.

The trial court decreed the legacies of $1000 each to the son of testatrix and her three step-children named in the will, and the legacy of $100 a year to her grandson "for his clothes" were valid, and they are a charge on the money of decedent in bank at her death and a charge on the rents collected from all of her real estate until paid. The court also decreed the legacy of $100 per annum for clothes for her grandson was to cease when the $4,000 legacies were paid.

The complainant insists this was error; that the testatrix intended for him to have $100 per annum from the rents of this property. The testatrix states:

"I bequeath to him $100 a year for his clothes-until the $4,000 which in part money left in the American Trust and Savings Company and the collections for rent amount to $4,000 bequeathed to my own son Frank Brizendine and Frank Brizendine, Jr., and my three step-children, Willie, Maud and Ruby Brizendine."

This sentence in the will is not complete and clear; but it appears from it that the testatrix desired the $100 for clothes to be paid annually until the cash and rents collected amounted to sufficient sum to pay the $4,000 legacies. It is clear from the context and from the entire will that the testatrix intended the $100 legacy per annum for clothes for her grandson would cease to be a charge on the rent of her real estate when the $4,000 legacies were paid from the cash left and the rents collected. These legacies are preferred charges on the cash in bank at her death, and on the rents to be collected from her real estate; and, while the $4,000 legacies are being collected and paid out of the rents, the testatrix makes a charge on the rents also of $100 per annum for her grandson for his clothes; the $100 annual legacy for clothes for the grandson from the rents to cease when sufficient amount from cash and rent is collected to pay the $4,000 legacies. This was the evident intent of the testatrix, and the court so decreed, and that part of the decree is affirmed.

It is clear from the will that the testatrix intended to bequeath to her grandson, Frank L. Brizendine, Jr., an undivided one-half interest in her real estate, subject to the legacies as hereinbefore shown; but was this interest contingent or vested, was it an executory devise subject to be divested by his death before reaching the age of 21, or did it vest absolutely in him at her death, subject to the charge of the legacies? The complainant contends the testatrix intended to bequeath to the grandson a contingent interest in this real estate, contingent upon his attaining the age of 21 years, and subject to be divested by his death before reaching 21. The guardian of the minor insists that the title to one-half of the real estate of the decedent under the will at her death vested absolutely in the grandson. The will contains this clause after the testatrix describes her real estate:

"When the $4,000 divided between my own son, Frank L. Brizendine, and my three step-children, Willie, Maud and Ruby Brizendine, and $100 a year to Frank L. Brizendine, Jr. Then of all the real estate left, I bequeath my grandson little Frank L. Brizendine, Jr., one-half of all my real estate when he becomes twenty-one years of age."

The first sentence is not complete; when read in the light of the entire will it is clearly seen the words "are paid" were intended in the first sentence by the...