Dillard v. Gill

• Decision Date: 05 March 1936
• Docket Number: 8 Div. 709
• Citation: 166 So. 430,231 Ala. 662
• Parties: DILLARD v. GILL.
• Court: Alabama Supreme Court

166 So. 430

231 Ala. 662

DILLARD v. GILL.

8 Div. 709

Supreme Court of Alabama

March 5, 1936

Appeal from Circuit Court, Madison County; Paul Speake, Judge.

Bill in equity by James M. Gill against Charles G. Dillard individually and as administrator of the estate of John V Gill Dillard, deceased, and others. From a decree for complainant, the named respondent appeals.

Affirmed.

Taylor Richardson & Sparkman, of Huntsville, for appellant.

Brickell & Johnston, Walter J. Price, and Chas. E. Shaver, all of Huntsville, for appellee.

BROWN Justice.

This is a bill, filed by one of the distributees of the estate of John V. Gill Dillard, deceased, against Charles G. Dillard individually and as the administrator of the estate of said John V. Gill Dillard, to remove the administration of the estate from the probate court of Madison county to the circuit court of said county, sitting in equity, and to set aside and cancel certain conveyances of real property, and transfers of personalty of said John V. Gill Dillard, executed by Charles G. Dillard, the respondent, to himself, under power of attorney executed by the said John V. Gill Dillard, "to do all things (in the name of the donor) necessary and needful in the transaction of any and all of my business, to receive money for me and in my name to execute receipts for the same, to sign agreements, contracts, notes, stock, transfers and any and all other instruments necessary to be executed in the full and complete performance of any and all duties connected with my business, it being my intention hereby to give him full and complete authority to do any and all things that I might do in the transaction of all my business affairs."

The other distributees of the estate were joined as parties defendant.

The bill was verified by the oath of the complainant, and on its filing and presentation to the circuit court, an order was made removing the administration of the estate into said court.

The defendants, other than Charles G. Dillard as administrator and individually, appeared and filed an answer admitting the averments of the bill.

Dillard, as administrator and individually, separately, interposed demurrers to the bill, assigning as grounds, that it is without equity, is multifarious, and misjoinder of parties, in that said defendants, distributees of the estate, are neither proper nor necessary parties. These demurrers were overruled.

The sixth paragraph of the bill alleges, "that the defendant, Charles G. Dillard, who was the husband of said John V. Gill Dillard, deceased, acting under the purported power contained in a certain instrument (the substance of which we have heretofore stated) *** did, on to-wit: the 12th day of September, 1934, two days before the death of said John V. Gill Dillard, and at a time when the said John V. Gill Dillard was unconscious and lying at the point of death, which fact was known to said Charles G. Dillard, made and executed to himself, certain purported conveyances of all of the real property belonging to said John V. Gill Dillard, deceased, and of practically all her personal property," describing it.

The seventh paragraph alleges "that said purported power of attorney did not and does not confer upon the said Charles G. Dillard the right of the power to make and execute said purported conveyances or if the said power is sufficient to confer upon him the power and right to make and execute said purported conveyances, that the same were executed by him *** at a time and under circumstances which show that the attempted exercise of such power was a fraud committed upon the said John V. Gill Dillard, deceased, this complainant and the other defendants, and that the same were withheld from record," etc.

The bill did not require a sworn answer, but expressly waived oath thereto.

Dillard answered, individually and as administrator, admitting the averments of the bill as to the residence, age, and right of the complainant and the other respondents as distributees of the estate, and further "answering the sixth and seventh paragraphs of the complainant's bill of complaint, these defendants say that the defendant Charles G. Dillard, who was the husband of John V. Gill Dillard, did execute to himself a conveyance of all of the real property belonging to the said John V. Gill Dillard, and those items of personal property enumerated in said paragraph (sixth), and that said conveyances were executed under a power of attorney which the said John V. Gill Dillard had several months prior thereto executed to him for the purpose of transacting her business affairs, and that said conveyances were executed in keeping with the wishes, instructions and directions of the said John V. Gill Dillard. Said John V. Gill Dillard had stated on numerous occasions a wish that all of her property be conveyed to the defendant, Charles G. Dillard, and that in the event of her death she did not want any part of her estate to go to the complainant, or to the other named defendants, and that said conveyances were executed for the purpose of conveying her property as she wished and not for the purpose of committing a fraud upon the said John V. Gill Dillard, the complainant or other named defendants." (Italics supplied.)

The answer was not verified by oath.

The defendant Dillard, as administrator and individually, amended his answer by incorporating therein a demurrer to that part of the seventh paragraph of the bill which avers "that said purported power of attorney did not and does not confer upon the said Charles G. Dillard the right or the power to make and execute said purported conveyances," assigning as grounds that the averment is a conclusion of the pleader; that the power of attorney which is incorporated in the bill as Exhibit A shows on its face that it did confer the power to execute said conveyances; that said power of attorney does not show, as a matter of law, that it did not confer such power.

The cause was submitted by agreement of the parties on the bill and answer, including the demurrers incorporated therein, for final decree.

The court overruled the demurrer, and entered a decree canceling said conveyances and transfers, and requiring Dillard as administrator to account for the property therein mentioned as assets of the estate.

The appeal is from the last-mentioned decree, and assignments of error are predicated on the interlocutory decree overruling the first demurrer to the bill and also overruling the demurrer incorporated in the answer, and that part of the decree canceling said transfers.

The administration of said estate is a single and continuous proceeding, and the cancellation of said conveyances and transfers, if they are subject to cancellation, is a mere incident to the due administration of the estate by removing obstacles clouding the title to property constituting assets subject to administration. The objections that the bill is without equity, and that it is multifarious are without merit. Code 1923, § 6478; Baker, Adm'r, v. Mitchell et al., 109 Ala. 490, 20...