Fillmore v. Yarbrough

• Citation: 20 So.2d 792,246 Ala. 375
• Decision Date: 01 February 1945
• Docket Number: 8 Div. 296.
• Parties: FILLMORE v. YARBROUGH et al.
• Court: Supreme Court of Alabama

20 So.2d 792

246 Ala. 375

FILLMORE v. YARBROUGH et al.

8 Div. 296.

Supreme Court of Alabama

February 1, 1945

M. F Lusk, of Guntersville, for appellant.

T. Harvey Wright, of Guntersville, for appellees.

The bill filed May 31, 1944, alleges that complainant was formerly Emily Yarbrough, wife and later widow, of W. W Yarbrough; that said W. W. Yarbrough was survived at his death by complainant, his widow, and the children named, and

grandchildren who are children of a deceased daughter, all of whom are made respondents to the bill; that said W. W. Yarbrough left a will which was duly probated July 25, 1921, and which is in pertinent part as follows:

'2nd. I give devise and bequeath to my beloved wife Emily M. Yarbrough, my entire home place, and all household furniture, and also One Thousand dollars in money and notes, that she shall use the income on the farm and money mensioned above, for her life time, or such potion of it as she may need for her exspenses, and after her death, I want what remaining to be disposed of and equally divided between the following heirs, L. L. Yarbrough, Hattie E. Hill, Mary G. Lawrence, Effie L. Clemmons, Mamie J. Graham, William H. Yarbrough.

'I also want my heirs as mensioned before to share equaly in what there is left after all my debts and wife's part are taken out, To have and to hold forever.'

The bill further alleges:

'Third: That complainant has long ago used up the personal property and money left by her deceased husband, and is now old, feeble and stone blind, after many years of failing sight; the 'home place' left by said decedent, viz: NW of NW, five acres on North side of SW of NW, and NE of NW less seven acres in NE corner, all in Section 29, Township 8 Range 2 East, of which complainant is now in possession, is all that remains of said estate; that complainant and her husband are too old and feeble to wrest a living from the farm by their own labor, and under the present manpower shortage cannot derive a living therefrom by hiring the work done or by renting it; that on said farm is matured merchantable timber worth several hundred dollars at present high prices.

'Fourth: That complainant needs to sell said timber to provide living expenses; that on more than one occasion recently she has bargained to sell said timber advantageously, but has been thwarted each time by some of the defendants, whose objections, protests and threats have caused prospective buyers to withdraw their offers.

'Fifth: That complainant is advised and believes, and upon such advice and belief alleges that said will invested her with the fee simple title to said lands, and that she has the right to sell said timber or part or all of said lands and convey a good title to the purchaser; that some of the defendants controvert this assertion, and complainant's title, use and enjoyment of said property are thus being interfered with; that it is necessary that said controversy be determined, and complainant's title declared.'

It is prayed that the court construe said will and declare complainant's title to said lands to be a fee absolute and controlled by Code 1940, Tit. 47, § 76, and for general relief.

FOSTER, Justice.

The trial court sustained a demurrer to the bill filed by appellant, and dismissed it as being without equity in not showing that she has a right to relief sought. The purpose of the bill and the prayer for relief are that the court will construe the will of her husband long since dead, and determine that under it she acquired an absolute fee so as to entitle her to sell the timber on the land, and be controlled by section 76, Title 47, Code.

The trial court took the view that the will is not susceptible to a favorable construction to that end, and therefore that she was not entitled to go further with the suit, and dismissed it.

We are confronted at the outset with the question of the power of the court to make a construction of the will. There is no administration pending. The suit is not by the trustee or executor seeking guidance of the court in the administration of the trust. It is by a legatee and against legatees whose sole purpose is to obtain a declaration as to the meaning of the will to control them each respectively in their power to dispose of the property or an interest in it, and their respective rights to it.

Not considering the declaratory judgments act, section 156 et seq., Title 7, Code of 1940, enacted in 1935, see page 777,--a legatee under a will or the beneficiary of a trust cannot seek a construction of it unless the bill invokes some other principle of equitable cognizance to aid that claim. Gilmer v. Gilmer, 245 Ala. 450, 17 So.2d 529; Hawkins v. Tanner, 243 Ala. 641, 11 So.2d 351; Upshaw v. Eubank, 227 Ala. 653, 151 So. 837.

But under the declaratory judgments act, supra, the court takes jurisdiction of an actual controversy as to a justiciable question, and settles it though in doing so, it must construe a will when there is no other equity to confer jurisdiction on the court. Montgomery v. Montgomery, 236 Ala. 161, 181 So. 92; Teal v. Mixon, 233 Ala. 23, 169 So. 477.

The justiciable question in the instant bill is to quiet the title to land. The bill sets out an actual controversy as to the rights of the parties in respect to its ownership and disposition. It shows therefore that complainant has an equitable right to have the will construed. When so, it is usual to require an answer and hearing on the pleadings and proof, and not to reach that construction by acting on a demurrer. Gilmer v. Gilmer, supra (3); Hawkins v. Tanner, supra (6).

In construing a will the intention of the testator must be ascertained not alone from the language of it when it is ambiguous, but from the language in connection with existing facts and circumstances known to the testator at the time of drafting it. Wiggins v. Wiggins, 241 Ala. 333, 2 So.2d 402; Montgomery v. Montgomery, supra; Thomas v. Reynolds, 234 Ala. 212, 174 So. 753; Hammond v. Bibb, 234 Ala. 192, 174 So. 634.

Here the will is clearly...