Bromberg v. Bates

• Decision Date: 28 May 1896
• Parties: BROMBERG ET AL. v. BATES ET AL.
• Court: Alabama Supreme Court

20 So. 786

112 Ala. 363

BROMBERG ET AL. v. BATES ET AL.

Supreme Court of Alabama

May 28, 1896

Appeal from chancery court, Mobile county; W. H. Tayloe, Chancellor.

Bill by Theodore C. Bates and others against Frederick G. Bromberg executor, and others, for the removal of the administration of the estate of defendants' testator from the probate to the chancery court, and for other relief. From a decree for complainants, the executor and certain others of the defendants appeal. Affirmed.

On the present appeal the appellants assign as error, and seek to have the court pass upon, the ruling of the chancellor upon the demurrers of the defendants which were filed to the bill as amended, and which were ruled upon by this court on a former appeal, as is shown by the report of the case in 98 Ala. 621, 13 So. 557. It is not, therefore, deemed necessary to set out the facts pertaining to the decree of the chancellor upon the demurrers, or to do more than to refer to the former report of the case. The issues of law and fact, as otherwise presented on the present appeal, may be summarized as follows: The bill alleges that the complainants are first cousins, and the heirs and next of kin, of Miss Susan F Rouse, who died in the city of Mobile on or about September 7, 1891, leaving a last will and testament, but also leaving certain property not disposed of thereby, namely, a family Bible; 14 shares of the capital stock of the People's Bank of Mobile, of the par value of $1,400; an unpaid mortgage executed by the defendant and appellant Elizabeth Zadek and E. O. Zadek, her husband, upon certain property owned by the said Elizabeth Zadek; a lot on Maryland street more than $8,500 in money realized from the sale of certain property, known and designated as "Hollinger's Island"; and certain stock in the Cedral Mining Company,-and that as to all of this property the said Susan F. Rouse died intestate. The bill then alleges that by the will of the said Susan F. Rouse the appellant Frederick G Bromberg was appointed, and has since qualified, as the executor of the last will and testament, without bond; that he has invested the money left by Miss Rouse in Alabama bonds, and is insisting that those bonds belong to Henry Alexander, to whom the testator devised only "whatever Alabama bonds I may have remaining at the time of my death now amounting to seven in number," and that the said Bromberg claims to own the said People's Bank stock, either individually or as the agent of some one; and that he, or some of the other defendants, also claims to own the other property not mentioned in the will of the testatrix. The bill then further avers that the said Bromberg, as executor, had filed in the probate court an inventory from which all of said property was entirely omitted. And then the bill proceeds: "Complainants show unto your honor that by reason of the relationship of the said Frederick G. Bromberg to the other defendants in said cause; and by reason of the fact that he has failed to include in said inventory such family Bible, which is of great importance to complainants, and has wholly omitted from the said inventory said mortgage by his sister, Mrs. Elizabeth G. Zadek, to the said Susan F. Rouse, and said capital stock in the People's Bank, which, as complainants are informed and believe, and upon such information and belief state, now stand in the name of said Frederick G. Bromberg, as agent of some person unknown to complainants; and by reason of the fact that the said Frederick G. Bromberg wholly failed to mention in said inventory the said sum of $8,500, and more, in money, left by her at the time of her death, and did, after the death of the said Susan F. Rouse, invest such money, without authority, and before said will of said Susan F. Rouse, deceased, was admitted to probate, and before said Frederick G. Bromberg was appointed or qualified as executor under said will, in Alabama bonds, so as to give the same the appearance of being the property, under the will, of the said Henry Alexander,-complainants show unto your honor that their interests in said estate are not safe in the hands of the said Frederick G. Bromberg, unless and until he is required to give a good and sufficient bond for the performance of his executorship." The prayer of the bill for relief is as follows: "Complainants further pray that your honor will cause the administration of said estate to be removed into this honorable court forthwith, and will require the further administration of said estate to be had in this honorable court, and that your honor will ascertain and decree the several items of the property hereinbefore mentioned, and the proceeds thereof, to belong to the said estate of said Susan F. Rouse, and will cause said executor to amend his inventory so as to set out said property therein, and will cancel and set aside any pretended conveyance of said property, or the proceeds thereof, that may be claimed to have been made during the lifetime of the said Susan F. Rouse, and will require the said Frederick G. Bromberg, executor aforesaid, to give bond in proper amount, with sufficient sureties, for the faithful administration of said estate, and will ascertain and determine the rights of the complainants, as the next of kin and heirs in law of the said Susan F. Rouse, in and to the property above set forth as not having been disposed of by said will, including the Alabama bonds which have been purchased with the money belonging to the estate of the said Susan F. Rouse at the time of her death, as above set forth, and will, at a proper time, cause said property and bonds to be distributed as the rights of the complainants shall appear, and will grant to complainants such other or further relief as they may be entitled to, the premises considered; and, as in duty bound, they will ever pray," etc.

The answers of the several defendants put the complainants to the proof of their relationship with the said Susan F. Rouse; but there was no controversy as to her death, residence, and ownership of the property in controversy at the time of her death. The will was attached to the bill as an exhibit, and exclusive of the prefatory declarations, was as follows: "Item First. It is my will that all my just debts, funeral expenses, and expenses of administration be paid out of my personal estate. Item Second. I give and devise to Mary E. Crocker, widow, of Mobile, Alabama, on account of her long and faithful service to me, for more than nineteen years, in my household, the house in which I now reside, at the southeast corner of Claiborne and St. Francis streets, Mobile, Alabama, and also give and bequeath to her the front parlor set of furniture in said house; also, one-half of my chinaware, and of my dresses and other clothing, except one white cashmere shawl, which I hereby give to Mrs. Alexander, wife of Henry Alexander. I also give said Mary E. Crocker the black marble-top table in the back parlor of my house, in the center. Item Third. I give and bequeath to Mrs. Alexander, wife of Henry Alexander, both of whom are old and valued friends to me, one half dozen large silver spoons, one half dozen small silver spoons, one half dozen large silver forks, one half dozen small silver forks, and one half dozen silver coffee spoons, and one-half of all my chinaware, and all gold spoons I have. Item Fourth. I give and bequeath to said Henry Alexander whatever Alabama state bonds I may have remaining at the time of my death, now amounting to seven in number, of one thousand dollars each, and not used by my executor in the payment of my debts, funeral expenses, and expenses of administration. Item Fifth. I give and bequeath to Mollie, Nathan, and Susan, children of Henry Alexander, the mortgage deed and note I hold against P. D. Barker and wife for four thousand dollars. Should said mortgage debt be paid before this will takes effect, I give to said named three children four thousand dollars, to be divided between them share and share alike. Said Nathan Alexander is named after my deceased half-brother, Nathan Whiting, and said Susan is named myself. I give to said Mollie Alexander, also, one half of all my dresses and clothing; the other half being heretofore given to said Mary E. Crocker. Item Sixth. I give the painting in the front parlor, representing 'Hagar in the Wilderness,' to my friend Elizabeth Zadek. Item Seventh. I give nothing to my relatives in the North, because they are perfect strangers to me, in whom I have no interest, and none of the property I am disposing of by this will was in any way derived from them. Item Eighth. I nominate and constitute Frederick G. Bromberg as the executor of this my last will and testament, and empower him to act without bond as such. I also empower him to make all divisions of personal property provided for in this will, and also to sell any real estate...