Cox v. Hutto
| Decision Date | 19 May 1927 |
| Docket Number | 8 Div. 955 |
| Citation | 113 So. 40,216 Ala. 232 |
| Parties | COX v. HUTTO et al. |
| Court | Alabama Supreme Court |
Appeal from Law and Equity Court, Franklin County; B.H. Sargent Judge.
Bill in equity by E.M. Hutto and another against George Cox and others, and all other known heirs of E.R. Kirby, deceased for specific performance of contract to make a will. From a decree overruling demurrer to the bill, defendant George Cox appeals. Affirmed.
Stell & Quillin, of Russellville, for appellant.
Williams & Chenault, of Russellville, for appellees.
The appeal is from a decree overruling a demurrer to a bill in equity. Code, § 6079. The decree was entered February 18th, and the appeal taken on March 21, 1927, the 31st day after the date of the decree. March 20th, the 30th day, was Sunday. The appeal taken on Monday following was within time, and the motion to dismiss is overruled. Code, § 13; Stewart v. Keller, 197 Ala. 575, 73 So. 89.
The bill is filed by E.M. Hutto and Minnie Hutto against the appellant and others as heirs at law and distributees of the estate of E.R. Kirby, deceased. In substance, it avers: That on October 2, 1923, E.R. Kirby and his wife, Mollie Kirby, "executed and delivered to these complainants a writing or contract agreeing to or obligating themselves to will to these complainants all of the real estate and personal property owned by the said E.R. Kirby and wife, Mollie Kirby, at the time of their death"; that E.R. Kirby died without complying with such contract; that at the time of his death he owned certain described lands, and personal property "consisting of cows, household goods, a stock of merchandise, notes and accounts due him, and money in the bank"; that complainants are in possession claiming to own said lands and personalty. The contract or writing made exhibit to the bill recites:
Then follows the habendum clause, and full covenants of warranty usual to deeds is signed and acknowledged before a justice of the peace.
The bill further avers:
"These complainants allege that they have for years lived with or near the said E.R. Kirby and his wife, Mollie Kirby, and cared for them and looked after them as long as they lived, and that they fully and completely complied with all their terms and agreements of said contract,"
--and prays:
"That this court will make and enter a decree of specific performance against said respondents decreeing that said contract be specifically performed to make these complainants the owners of said real and personal property above set out."
The instrument is a contract to execute a will, operative upon the property owned at the death of testators, rather than a deed to specific property. It is supported by a valuable consideration.
The bill presents a proper case for relief in the nature of specific performance. The heirs succeed to and hold the legal title to the lands in trust for the complainants. Complainants are entitled to have this title divested and vested in themselves and their status as devisees and legatees adjudicated as if a will had been made according to contract. Stone v. Burgeson (Ala.) 109 So. 155; Bolman v. Overall, 80 Ala. 451, 455, 2 So. 624, 60 Am.Rep. 107; Manning v. Pippen, 86 Ala. 357, 5 So. 572, 11 Am.St.Rep. 46; Walker v. Yarbrough, 200 Ala. 458, 76 So. 390; Mayfield v. Cook, 201 Ala. 187, 77 So. 713; Poe v. Kemp, 206 Ala. 228, 89 So. 716; Taylor v. Cathey, 211 Ala. 589, 100 So. 834.
The contract having operation as a will, passing all the property owned at the time of decedent's death, the general description of the personal estate is sufficient. No inventory was required.
That the agreement to make a will was executed by husband and...
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... ... 56. Aside ... from this disputed and doubtful question of delivery, or ... otherwise, and aside from the powers contained in the recent ... statute, section 8046, Code of 1923, effective August 17, ... 1924, and not impairing the obligation of contract then ... existing ( Cox v. Hutto, 216 Ala. 232, 113 So. 40), ... the grantors (of such an estate incumbered with a trust for ... grantors' benefit during life) may revoke and cancel the ... same for a substantial failure or refusal of the ... consideration, or failure or refusal of the performance of ... the obligation ... ...
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