Chancey v. West

• Decision Date: 27 June 1957
• Docket Number: 6 Div. 868
• Parties: Bryan CHANCEY v. E. L. WEST et al.
• Court: Alabama Supreme Court

Page 457

96 So.2d 457

266 Ala. 314

Bryan CHANCEY v. E. L. WEST et al.

6 Div. 868.

Supreme Court of Alabama.

June 27, 1957.

Robt. S. Gordon and Chas. Cleveland, Birmingham, for appellant.

Pritchard, McCall & Jones and Victor H. Smith, Birmingham, for appellees.

COLEMAN, Justice.

Appellant filed a petition for declaratory judgment against appellees praying for a construction of item five of the will of Jess Felix Holley, deceased. The appellees are the executors of said will and the legatees and devisees thereunder.

The petition alleges that said will was duly probated in the Probate Court of Jefferson County, that letters testamentary had been granted to the executors named in said will, and thereafter the administration of said estate had been duly transferred to the circuit court, in equity, in which court appellant filed his said petition for declaratory judgment.

The petition further avers that item five of said will contains the following provision:

"I hereby direct that Bryan Chancey of Birmingham, Jefferson County, Alabama, now my good friend and attorney, be and act as the attorney for my executors in the administration of the terms and provisions of this will and of my estate."

The appellant is the attorney mentioned in said item five. The petition shows that appellant had been employed as attorney for the probate of said will; that appellant is now and has been ready, willing and able to continue to act as attorney for said executors in the administration of said estate in accordance with said will and has so advised said executors; that said executors however, have notified appellant that they desire to terminate his services as attorney for them in the aforesaid administration and to obtain other counsel; and that the executors insist they have discharged appellant as said attorney.

The petition avers that a justiciable controversy exists between appellant and said executors in that appellant claims that said item five is binding upon the executors and 'in effect makes your petitioner a beneficiary of said estate.' On the other hand, said executors contend that said item five is not binding upon them and that they are under no legal or equitable duty to comply therewith and that they have the legal right to discharge petitioner as attorney for said executors. The petition prays for a declaration of the rights of the parties and that the court will decree that petitioner is entitled to act as attorney for said executors in accordance with item five of said will; that the court will further decree that petitioner is a beneficiary of the estate of testator; and that under item five of said will, petitioner's right to serve as such attorney cannot be terminated by said executors so long as petitioner is ready, willing and able to perform the services required of him in accordance with said item five of said will.

The respondents, executors aforesaid, demurred to said petition on numerous grounds, among which are the following:

'3. For that it does not appear that as a matter of fact or of law the complainant has a right to maintain this action for declaratory judgment.

'4. For that the complainant is not shown to be interested as or through [as] executor, administrator, trustee, guardian, or other fiduciary, creditor, devisee, legatee, heir, next of kin or cestui que trust in the administration of a trust or of the estate of the said Jess Felix Holley, deceased.

'5. For that it affirmatively appears that the administration of the Estate of the said Jess Felix Holley is pending in this Honorable Court and said bill of complaint or petition shows no facts or reasons why the complainant cannot obtain full and complete relief by petition in said administration proceedings without subjecting these respondents to the expense and annoyance of defending a separate suit in this court.'

In his decree, the trial judge stated the following reason for sustaining the demurrer:

'That the petition shows on its face that the Estate of Jess Felix Holley, deceased, is being administered in this Court and that the matters set forth in the petition for declaratory judgment should be determined by petition filed in the pending administration, and the Court is therefore of the opinion that the said petition for Declaratory Judgment was improvidently filed as a separate cause of action.'

From the decree sustaining the demurrer and dismissing the petition, appellant has appealed to this court.

Appellant's argument is directed to two propositions. The first proposition is that the decree of the chancellor is erroneously based on the reason that appellant's petition ought to have been filed 'in the pending administration' instead of being brought, as it was, in a separate suit.

We are not clear to the conclusion that the reason stated in the decree is sufficient to sustain the demurrer, but we pretermit further consideration thereof because we are of opinion that grounds 3 and 4 of the demurrer, which are set out in this opinion, were sufficient to sustain the decree appealed from.

'And when the decree refers to certain grounds as good, and on appeal this court finds that those grounds thought by the trial court to be good are not good, but other grounds are good, the decree will not be reversed for assigning the wrong reason for the ruling. Tatum v. Tatum, 111 Ala. 209, 20 So 341.' American Life Ins. Co. v. Powell, 260 Ala. 574, 576, 71 So.2d 872, 873, 874.

'* * * We are not limited to a consideration of those grounds of the demurrer which appear from the opinion of the trial court to have been considered as well taken. L. W. Richardson & Co. v. Town of Hamilton, 248 Ala. 585, 28 So.2d 924.' Montgomery v. Drinkard Auto & Truck Co., 257 Ala. 685, 687, 60 So.2d 823, 824, 825. See, also: Ala. Digest, Appeal and Error, k854(3), and cases there cited.

The second proposition argued by appellant is that item five of the will requires the executors to employ appellant to represent them in administering the estate.

Title 7, § 159, Code 1940, specifies certain persons who may have a declaratory judgment construing a will. If appellant comes within any class there enumerated, then appellant might sustain his right to a declaratory judgment in the premises. On the other hand, if appellant is not one of the persons expressly given such a right by the statute, we do not think he has a sufficient interest in the subject matter of this suit to enable him to maintain it.

This court in enumerating the requirements for declaratory judgment has made the following statement:

'An eminent authority in the field has summarized the prerequisites of action for declaratory judgment in this way: '* * * the conditions of the usual action, procedural and substantive, must always be present, namely, * * * a sufficient legal interest in the moving party to entitle him to invoke a judgment in his behalf. * * *' Borchard, Declaratory Judgments, 2d Ed. (1941), p. 26. * * *.' Love v. Rennie, 254 Ala. 382, 389, 48 So.2d 458, 465.

Another treatise on declaratory judgments contains the following statement:

'The plaintiff's pleading must state facts sufficient to state a cause of action in the plaintiff, or differently stated, to state a cause of action entitling the plaintiff to declaratory relief, and this rule is not complied with by a pleading that merely states a cause of action as an abstract proposition.

'Not only must the complaint of the plaintiff state a cause of action in the plaintiff, but it must also show that the court has jurisdiction of the particular cause of action alleged.

'If it appears from the plaintiff's pleading that in no event could the plaintiff have a declaration, then a dismissal of the action is the proper judgment to enter.' Actions for Declaratory Judgments, Anderson, Vol. 1, pages 602, 603.

Thus it appears that if item five of said will is not binding on the executors, then appellant does not have the interest necessary to maintain his action and grounds 3 and 4 of the demurrer were well taken.

'* * * This court has said that, 'Ordinarily where the bill for a declaratory judgment shows a bona fide justiciable controversy which should be settled, the demurrer thereto should be overruled and a declaration of rights made and entered only after answer and on such evidence as the parties may deem proper to introduce on submission for final decree.' * * * In other words 'the test of the sufficiency of a complaint in a declaratory judgment proceeding is not whether the complaint shows that the plaintiff will succeed in getting a declaration of rights in accordance with his theories and contentions but whether he is entitled to a declaration of rights at all.' Authorities supra. But where a situation is presented where both parties assert rights dependent on a specific construction and a question of law is presented, a declaration of rights will be made where the question is raised by demurrer. * * *' Darling Shop of Birmingham v. Nelson Realty Co., 255 Ala. 586, 590, 52 So.2d 211, 214.

In the instant case, a determination of appellant's right to have a declaratory judgment requires a decision as to the force and effect of the above quoted provision from item five of the will.

The construction of such a provision in a will, as appellant states in brief and so far as our research has shown, is a question of first impression in this State. Other states are divided on the question. The minority view is found in Louisiana where it is held that a provision in a will directing the appointment of an attorney to handle the legal affairs of the estate is valid and binding on the executor.

An opinion of the Supreme Court of Louisiana recites, in pertinent part, as follows:

'Anthony Battistella died leaving a will by which he distributed his estate, named an executor, and designated plaintiff, and attorney at law, to settle his estate in Louisiana.

'Plaintiff tendered his services to the widow and heirs, legatees...