Edwards v. Edwards

• Decision Date: 20 December 1904
• Citation: 39 So. 82,142 Ala. 267
• Parties: EDWARDS ET AL. v. EDWARDS.
• Court: Alabama Supreme Court

39 So. 82

142 Ala. 267

EDWARDS ET AL. v. EDWARDS.

Supreme Court of Alabama

December 20, 1904

Appeal from Probate Court, Autauga County; Geo. I. Livingston Judge.

Petition by A. H. Edwards against Sallie Edwards and others. From a decree in favor of petitioner, defendants appeal. Reversed.

It was averred in the amended petition "that A. H. Edwards, the petitioner, was a resident citizen of Autauga county, and was over the age of 21 years; that Holman Edwards, Mary Edwards Sallie Edwards, and Mrs. B. F. Small were the heirs at law of Dr. Charles A. Edwards"; that Dr. Charles A. Edwards died on June 10, 1900, and that on December 21, 1889, the above-named Holman Edwards died, leaving surviving him three children, viz., Eugene Edwards, Marie Edwards, and the petitioner, A. H. Edwards; that on the 11th day of September 1865, Daniel Pratt conveyed to the said Charles A. Edwards in trust for the use and benefit of Mrs. Agnes P. Edwards wife of the said Charles A. Edwards, and the children of the said Agnes P. Edwards by the said Charles A. Edwards, which said children were Holman Edwards, Sallie Edwards, Mary Edwards, and Mrs. B. F. Small, certain parcels or lots of land specifically described, lying and being situated in the town of Prattville, county of Autauga, and state of Alabama; that the petitioner, A. H. Edwards, and Eugene Edwards and Marie Edwards are the children of Holman Edwards, deceased, and they, together with Sallie Edwards, Marie Edwards, and Mrs. B. F. Small, are the joint owners of the lots of land specifically described in the complaint; "that the above-mentioned lots of land cannot be equitably divided among the several joint owners of the same;" that Sallie Edwards, Mary Edwards, and Mrs. B. F. Small are all over the age of 21 years, and that Eugene and Marie Edwards are under the age of 21 years. The prayer of the petition was as follows: "Therefore your petitioner prays that your honor will grant a decree of sale of the said lots for a division thereof among the several joint owners as follows: A one-fourth interest to Miss Mary Edwards, a one-fourth interest to Miss Sallie Edwards, and a one-fourth interest to Mrs. B. F. Small, all of whom now reside at Chappell Hill, in the state of Texas, and a one-fourth interest to petitioner, A. H. Edwards, Eugene Edwards, and Marie Edwards jointly, who reside at Prattville, Ala."

To the amended petition the respondents demurred upon the following grounds: (1) That it was shown that the property sought to be sold was conveyed to Dr. Charles A. Edwards in trust, and that the probate court had not jurisdiction to entertain the petition and decree for the sale of said lands. (2) Said petition fails to show what interest the parties to said suit and each of them hold or own in said lands. (3) Said petition fails to disclose what interest, if any, the petitioner, A. H. Edwards, owned in said lands at the time of the filing of the petition. (4) Said petition fails to show what interest, if any, said Holman Edwards, deceased, held in said lands during his lifetime. (5) Said petition shows that said Holman Edwards had no interest in said lands in his lifetime. (6) The ages of Eugene Edwards and Marie Edwards are not set out in the petition. This demurrer was overruled.

The respondents filed an answer to the petition, in which they admitted the averments thereof, except the averments as to the children of Holman Edwards owning an interest in said lands, which facts they denied in their said answer. They attached to their said answer the deed executed by Daniel Pratt and wife to said Charles A. Edwards, conveying the property described in the petition. After granting and conveying said lands, which were described in said deed, the said deed then proceeds in its habendum clause, as follows: "That the said Charles A. Edwards is to hold the above mentioned and described premises as trustee, and they shall be held for the use, benefit, and behoof of Mrs. Agnes P. Edwards, wife of said Charles A. Edwards, and her children by the said Charles A. Edwards, and as trustee for them, and in special trust for the said Agnes P. Edwards and her said children or issue, to live, dwell, and inhabit thereon and therein, and for the support and maintenance of the said Agnes P. Edwards, and for the support, maintenance, protection, and education of the said children or issue. The above mentioned and described premises are to be held only as trustee of the said Agnes P. Edwards and the said children or issue by the said Charles A. Edwards, and are not in any event whatever to be subject to the past, present, or future liabilities, debts, or obligations, either legal or equitable, of the said Charles A. Edwards. And whenever the interest and convenience of the said Agnes P. Edwards and her said children or issue require, demand, or justify a sale of the aforesaid premises, then the said trustee, Charles A. Edwards, is authorized and empowered to sell and convey the same to the highest bidder, either at public or private sale, for cash or on a credit, as he, said trustee, may think best and advisable, and invest the purchase money for the same, as soon as collected, in some other and suitable real estate, which real estate, when so purchased, is to be held by said trustee as the aforedescribed premises, and subject to the same trusts, and for the same purposes."

The petitioner propounded interrogatories. The first sentence of interrogatories was as follows: "Interrogatories to be propounded to J. L. Alexander and J. T. Floyd, in the above-entitled cause"--which sentence was then followed by several interrogatories. At the end of said interrogatories it was suggested that H. E. Gipson be appointed commissioner. These interrogatories were filed on March 28, 1902. On the same day, to wit, March 28, 1902, a commission was issued to H. E. Gipson. In the commission issued by G. S. Livingston, judge of probate of Autauga county, to H. E. Gipson, it was stated that he was appointed "as commissioner to take the answers to the interrogatories and cross-interrogatories hereunto attached of J. L. Alexander and H. J. May, material witnesses for the plaintiff" in said cause. There was no notice given to respondents of the filing of said interrogatories, and there were no cross-interrogatories propounded. The depositions of these witnesses as returned by the commissioner set out at length the answers of the said J. L. Alexander to the several interrogatories propounded, which answers were signed by Alexander. Immediately following the deposition of the witness Alexander there is what purports to be the deposition of H. J. May, which, after stating his name, age, and residence in answer to the first interrogatories, then proceeds as follows: "On hearing the other deposition of J. L. Alexander read over, H. J. May subscribed his name to the same, and adopts them as his deposition to the same interrogatories." There then follows the signature of H. J. May. It was shown by the deposition of J. L. Alexander that Mrs. Agnes P. Edwards, the wife of Dr. C. A. Edwards, was dead at the time of the filing of the petition; and the witness Alexander further testified that the property, which was jointly owned by the parties to the suit, could not be equitably divided.

There was appointed no guardian ad litem for Eugene Edwards and Marie Edwards, who were minors.

Before entering upon the trial of the cause the respondents moved the court to suppress the depositions of the witnesses J. L. Alexander and H. J. May, taken in behalf of this cause, upon the following grounds: (1) Because said depositions were not taken as in chancery cases. (2) The interrogatories propounded by the witnesses were filed in the office of the judge of probate of Autauga county, Ala., on the 28th day of March, 1902, and a commission to take the depositions thereon was issued on the same day. (3) Said cause was not at issue when said interrogatories were filed and commission was issued to take said depositions. (4) The defendants, nor any of them, nor their attorneys or solicitors, were served with notice for 10 days of the filing of the interrogatories. (5) Copies of said interrogatories were not served upon the opposite parties or their attorneys. (6) The place or places of residence of the witnesses was not given, nor was affidavit made that same was unknown. (7) The interrogatories filed in the court were for the purpose of taking the testimony of J. L. Alexander and J. T. Floyd as witnesses, whereas a commission was issued to take the deposition of J. L. Alexander and H. J. May. (8) Because the witness H. J. May did not answer the interrogatories propounded to him. (9) Because the deposition of H. J. May was not taken.

The court overruled the motion to suppress the depositions, and from this ruling the defendant duly excepted. The depositions were introduced in evidence, and the copy of the deed from Daniel Pratt and wife to Dr. Charles A. Edwards was also introduced in evidence. Upon the introduction of all the evidence the court rendered a decree granting the prayer of the petitioner and ordering the property sold. From this decree the respondents appeal, and assign as error the overruling of their demurrers to the petition,...