Dozier v. Dozier

• Decision Date: 17 January 1918
• Docket Number: 6 Div. 606
• Citation: 77 So. 700,201 Ala. 174
• Parties: DOZIER v. DOZIER et al.
• Court: Alabama Supreme Court

77 So. 700

201 Ala. 174

DOZIER v. DOZIER et al.

6 Div. 606

Supreme Court of Alabama

January 17, 1918

Appeal from Circuit Court, Jefferson County; A.H. Benners, Judge.

Bill by Henry M. Dozier and others against Bessie Duy Dozier. Judgment for complainants, and defendant appeals. Reversed and remanded, with directions.

Smyer &amp Smith, Hugh Morrow, and J.A. Simpson, all of Birmingham, for appellant.

A.H Alston, Jr., of Birmingham, for appellees.

McCLELLAN J.

The question presented by this appeal is the proper construction of the last will and testament of G.B. Duy, deceased. Aside from its formal parts and its efficient execution, the whole will reads:

"I devise and bequeath all of my property real and personal to my daughter Mrs. Bessie Duy Dozier of Birmingham Ala. for the sole use and benefit of herself and her children with the exception of a one sixth interest in the firm of Spurgeon and Dozier Co. which I give to my son in law Henry M. Dozier, and I hereby appoint my said daughter executrix of this my last will and testament, and desire that no bond be required of her and that she be relieved from accounting to any court."

The complainants (appellees) assert in their bill that the manifested meaning and intent of the testator was to create a trust comprehending the real property described in the bill, with Mrs. Bessie Duy Dozier, the daughter of the testator, as the trustee; and it was further averred that the following extract from a letter, addressed to Bessie Duy Dozier, by the testator, inclosed in the same envelope with said will, should be considered in interpreting the will, and that the influence of the expressions from this letter was to contribute to sustain the correctness of the construction put upon the will by the complainants in their bill:

"This will give you the store at No. 2122 2nd avenue, and with this piece of property paid for you will be sure of some income until its value increases to such a price that it may be thought best to sell it.

"The management and handling of what little I have left you will be at your discretion, with the advice and assistance of Mr. Yancey and such other advice that you may wish to take."

The respondent, Mrs. Bessie Duy Dozier, asserted that the proper construction of the will was to establish in her the absolute title to the real property described in the bill. The decree concluded to these effects: That the will did not create a trust, as claimed in the original bill; but that it did constitute the complainants and their mother, Bessie Duy Dozier, tenants in common in the real property described in the original bill.

The letter quoted in the original bill was not referred to in any manner in the will of Mr. Duy, and hence did not become a part of that instrument; and, furthermore, it appears on its face, as quoted in the original bill, not to have been in existence when the will was executed. It purports to be but a recital of the effect of the theretofore executed will of Mr Duy, not testamentary in any proper sense. Bryan's Appeal, 77 Conn. 240, 58 A. 748, 68 L.R.A. 353, 107 Am.St.Rep. 34, 1 Ann.Cas. 393; 6 Modern American Law, bottom page 548; Bryan v. Bigelow, 77 Conn. 604, 60 A. 266, 107 Am.St.Rep. 64 and note; 6 Modern American Law, top pages 92-95. The letter cannot be regarded as evidence of the intent the testator entertained in the quoted provisions of his will. It does not fall within any of the categories of admissible evidential advice in the judicial service of construing the testator's will. There is no latent...