Curjel v. Ash
| Decision Date | 13 May 1954 |
| Docket Number | 1 Div. 513 |
| Parties | CURJEL et al. v. ASH. |
| Court | Alabama Supreme Court |
Vickers & Thornton, Mobile, and E. M. Friend, Jr., Birmingham, for appellants.
Smith, Hand, Arendall & Bedsole, Mobile, for appellee.
Appeal by respondents (except Augusta J. Eichold) from decree overruling their demurrer to bill of complaint seeking relief under the Declaratory Judgments Act, Code 1940, Tit. 7, § 156 et seq.
The bill, as last amended, alleges, to the extent here material, the following: That 'Miriam P. Jacobson died on July 15, 1951, leaving a last will and testament which has been duly probated and admitted to record in the Probate Court of Mobile County, Alabama, on August 1, 1951'; that Carol L. Curjel, one of the respondents, 'is now acting as executrix' under said will; that under the second item of said will complainant was devised 'that certain real property known as 221 Dauphin Street, in the City of Mobile, Alabama'; that under the fifth item of said will respondents Augusta J. Eichold and Carol L. Curjel were devised 'all the residue' of testatrix' estate, share and share alike; that 'said second item referred to a parcel of business property in the downtown or business area of the City of Mobile, Alabama, improved in part by a store building three (3) floors in height, such property being all the real property owned by said testatrix and located in the block bounded by Dauphin, Conception, Conti and Joachim Streets, in the City of Mobile, Alabama'; that 'under the said will of the said decedent the said Anne Louise Ash [complainant] is the devisee of all of said property, and that no part of the same passed under the said fifth item of said will or by intestacy to the said Augusta J. Eichold or the said Carol L. Curjel'; that 'the said Carol L. Curjel, individually and as such executrix, has purported to construe said will in her own personal and individual favor and she contends, in her individual capacity and in her capacity as such executrix, that she has personally acquired some interest in said property'; that 'pursuant to such contention, she and her husband, Hans Curjel [a respondent], have executed and delivered, under date of November 5, 1951, a conveyance purporting to quit-claim to the said Mrs. Hermoine C. Friend [a respondent] and the said Mrs. Barbara C. Steiner [a respondent] an interest in a portion of said devised property, described in such conveyance as the premises 'known as 221-A Dauphin Street''; that 'said quit-claim deed appears of record as a cloud on the title of the said Anne Louise Ash and will remain such unless relief is granted by the court, as herein prayed'; that 'plaintiff is and has been in peaceful possession of the said real property and building hereon [sic], devised in said will, and the defendants claim or are reputed to claim some right, title or interest in or encumbrance upon such lands'; that 'there is no suit pending to enforce or test the validity of such title, claim or encumbrance'; that 'plaintiff demands that defendants set forth and specify the title, claim, interest or encumbrance claimed by them or any of them, and how and by what instrument the same is derived and created'; that 'the said Carol L. Curjel, individually and as such executrix, has failed to recognize the right of the said Anne Louise Ash to all the rents and profits accruing from said property since the death of said decedent and fails and refuses to make proper distribution of the same to the said Anne Louise Ash' and that 'the other defendants herein, except the said Augusta J. Eichold, also deny the right of the said Anne Louise Ash to such rents and profits'; that 'by virtue of the contentions, acts, and omissions of the said Carol L. Curjel, individually and as such executrix, and the other defendants herein (except the said Augusta J. Eichold), there exists a justiciable controversy with respect to the title of said real property, and as to the construction of said will and the rights and legal relations of the parties hereto in respect to said will'; and that 'this action is brought to obtain a judgment determining such controversies and construing said will and declaring the rights and legal relations of the parties hereto in respect to said property by virtue of said will'.
The prayer for relief is that the court 'enter a decree construing the said will of the said Miriam P. Jacobson, deceased, quieting the title to the aforesaid real property, and declaring the rights and legal relations of the parties hereto in respect to said real property and said will, and specifically declaring that:
'1. Under said will, the said Anne Louise Ash is the devisee of all of said real property.
'2. The said Carol L. Curjel, individually and as executrix under the will of Miriam...
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Curjel v. Ash, 1 Div. 631
...prayer of the amended bill which we considered on that appeal, for they are fully set out in our opinion then delivered. See Curjel v. Ash, 261 Ala. 42, 72 So.2d 732. After remandment Anne Louise Ash again amended her bill. The respondents who had previously demurred filed demurrer to the b......
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Little v. Redditt
...contention, but whether he is entitled to a declaration of rights at all. Curjel v. Ash, 263 Ala. 585, 83 So.2d 293, 296; Curjel v. Ash, 261 Ala. 42, 45, 72 So.2d 732; Water-works and Sanitary Sewer Board v. Dean, 260 Ala. 221, 69 So.2d 704; Percoff v. Solomon, 259 Ala. 482, 67 So.2d 31, 38......
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Adams Supply Co. v. U.S. Fidelity & Guaranty Co.
...a declaratory judgment when it contains the averments essential to that relief under section 156 et seq., Title 7, Code. Curjel v. Ash, 261 Ala. 42, 72 So.2d 732; Water Works and Sanitary Sewer Board v. Dean, 260 Ala. 221, 69 So.2d 704; Percoff v. Solomon, 259 Ala. 482, 67 So.2d 31, 38 A.L.......
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Case v. Moorer
...a declaratory judgment when it contains the averments essential to that relief under section 156 et seq., Title 7, Code. Curjel v. Ash, 261 Ala. 42, 72 So.2d 732; Water Works and Sanitary Sewer Board v. Dean, 260 Ala. 221, 69 So.2d 704; Percoff v. Solomon, 259 Ala. 482, 67 So.2d 31, 38 A.L.......