Bromberg v. Bates

• Court: Supreme Court of Alabama
• Writing for the Court: COLEMAN, J.
• Citation: 98 Ala. 621,13 So. 557
• Parties: BROMBERG ET AL. v. BATES ET AL.
• Decision Date: 22 June 1893

13 So. 557

98 Ala. 621

BROMBERG ET AL. v. BATES ET AL.

Supreme Court of Alabama

June 22, 1893

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

The bill in this case was filed by Theodore C. Bates and others against Frederick G. Bromberg and others for the purpose of having the administration and settlement of the estate of Susan F. Rouse, deceased, removed from the probate court of Mobile county into the chancery court. The present appeal is prosecuted from two interlocutory decrees of the chancellor overruling the respondents' demurrer to the original bill, and to the bill as amended. Reversed and remanded.

The complainants, in their bill of complaint, allege that Susan F. Rouse died September 7, 1891, in Mobile, leaving both real and personal property; that she left an instrument that purported to be her last will and testament, which was admitted to probate as such in the probate court of Mobile county. The bill then continued that complainants "did not know if said instrument was a free and voluntary act of said Susan F. Rouse in the distribution of her property or not." The bill shows further that the defendant Frederick G. Bromberg was nominated in said will as executor without bond, and has qualified as such; and further avers that the appellant Bromberg was said Susan F. Rouse's attorney during her life, "and that she had great confidence in the said Frederick G. Bromberg, and he, knowing such confidence, and the relationship of attorney and client existing between them, had great influence over said Susan F Rouse." The bill further avers that said Bromberg has filed his inventory of the said Susan F. Rouse's estate and then alleged that said Susan F. Rouse, at her death, had in her possession a family Bible; that she left more than $8,500 in money, which, at the time of her death, was in said Bromberg's possession as her attorney; that a short time before her death she owned more than $5,000, face value, of the capital stock of the People's Bank of Mobile; that a short time prior to her death she owned and held a mortgage for some amount unknown to complainants, made to her by E. O Zadek; that she had an undivided one-third interest in some real property in Mobile and a lot of land in said city, and that none of these items were included in said Bromberg's inventory of Mrs. Rouse's estate made by him as the executor thereof.

The bill further states that the said family Bible is in the said Bromberg's possession; that the Zadek mortgage has never been paid or satisfied; that, if said mortgage has been given away, it has been given to some of the defendants, and, if given away, that Mrs. Rouse was induced to give it away by the exercise of undue influence by the parties to whom it was given, or of some parties connected with or interested in them, and that such gift of said mortgage was void as to Mrs Rouse and her heirs at law and next of kin. The bill further alleges that the inventory filed by said Frederick G Bromberg omits any mention of the $5,000 of the People's Bank stock; that the said stock was owned by Mrs. Rouse at the time of her death; and also that if it was given away, or otherwise disposed of, during her life, it was for no valuable consideration, to some of the defendants, and that she was induced to so give it away and dispose of it by the exercise of undue influence on the part of some person or persons unknown to the complainants.

Similar averments are made respecting the real property. The bill further avers that said inventory sets out as a part of the property of said Susan F. Rouse at the time of her death certain Alabama bonds, but that the complainants did not know if said bonds were in fact owned by Mrs. Rouse at the time of her death; that she did not own more than seven of said bonds, and that said Bromberg purchased the remainder after her death, with money left by her. The bill then alleges that they are the said Susan F. Rouse's first cousins and next of kin, but said Bromberg denies the relationship; that said Bible, in his possession, contains valuable information as to the family connections of said Susan F. Rouse, of great importance to the complainants in showing their relationship to her. The bill then contained this averment: "Complainants show unto your honor that their interests in said estate are not safe in the hands of said Frederick G. Bromberg, unless and until he is required to give a good and sufficient bond for the performance of his executorship." The bill further avers that by reason of several controversies that have arisen, or which will probably hereafter arise, in and about said several items omitted, as aforesaid, from said inventory, the administration of said estate will be complicated, and that the equities of the several parties can be more fully and more readily settled in the chancery than in the probate court.

The prayer of the bill is that the administration of said estate be removed into the chancery court; that the chancellor "will ascertain and decree said several items of property hereinbefore mentioned, or the proceeds thereof, to belong to the estate of the 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 conveyances or dispositions of said several pieces of property or to the proceeds thereof that may be claimed to have been made during the lifetime of the said Susan F. Rouse;" that said Bromberg, as executor of Mrs. Rouse, will be required to give bond; that the court will ascertain and determine the rights of complainants as next of kin of Mrs. Rouse, and will cause said estate to be settled and distributed at the present time; and for general relief.

Answer under oath was waived as to all the defendants. The defendants interposed demurrers to the bill as originally filed, one of the grounds of which was that the bill was without equity, because it was filed for the purpose of discovery, and waives answer under oath, thereby depriving the answer of all weight as evidence. Each of these grounds of demurrer were overruled, and this is one of the decrees appealed from. Complainants afterwards amended their original bill as to the averments of their relationship to Susan F. Rouse, deceased, as contained in the eighth paragraph, so as to make it read as follows: "Complainants show unto your honor that they are the first cousins of the said Susan F. Rouse, deceased, and, as such, are entitled to such portions of said property as are not specifically disposed of by said will, including said money which was on hand at the time of the death of the said Susan F. Rouse, but which had been invested in Alabama bonds since her death; and this whether said instrument is valid as the said last will and testament of the said Susan F. Rouse, or not. If said instrument so probated as the last will and testament of the said Susan F. Rouse is not valid as her last will and testament, then complainants are entitled to her entire estate, after the payment of the debts of the said Susan F. Rouse, her funeral expenses, and the expenses of administering her estate; but complainants do not know whether said instrument is valid as such last will and testament or not, and, as they are advised that this is immaterial to the relief for which they seek in this bill of complaint, they neither affirm nor deny the same, and seek for no relief predicated upon the validity, or invalidity, of said will."

The prayer of the bill was amended so as to limit the court to ascertaining the appellees' rights "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 S. 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 complainants shall appear." The defendants demurred to the bill as amended, assigning the following grounds: (1) To so much of the same as alleges in the second paragraph that "complainants do not know if said instrument was the free and voluntary act of said Susan F. Rouse in the disposition of her property or not," because the said allegation does not present an issue of fact material to the relief. (2) To so much of the same as alleges in paragraph 4 that "during the lifetime of said Susan F. Rouse the said Frederick G. Bromberg was her attorney, and that she had great confidence in the said Frederick G Bromberg, and he, owing to such confidence and the relationship of attorney and client existing between them, had great influence over said Susan F. Rouse," because it does not present an issue material to the relief prayed by the bill. (3) To so much of the same as alleges in paragraph 5 that "she [Susan F. Rouse] also, a short time prior to her death, owned and held a mortgage...