First Nat. Bank v. Cash

• Decision Date: 07 November 1929
• Docket Number: 7 Div. 878.
• Citation: 125 So. 28,220 Ala. 319
• Parties: FIRST NAT. BANK OF LINCOLN v. CASH ET AL.
• Court: Alabama Supreme Court

125 So. 28

220 Ala. 319

FIRST NAT. BANK OF LINCOLN v. CASH ET AL.

7 Div. 878.

Supreme Court of Alabama

November 7, 1929

Rehearing Denied Dec. 19, 1929.

Appeal from Circuit Court, Talladega County; R. B. Carr, Judge.

Bill in equity by Maggie N. Cash, and others, as trustees under the will of J. O. McCullars, deceased, against the First National Bank of Lincoln, wherein respondent filed a cross-bill. Decree for complainants, and respondent appeals. Reversed and remanded.

Equitable interest as result of conveyance by children of testator with vested interest to mother was subject to mortgage theretofore executed by mother on property.

The bill refers to the will of said J. O. McCullars, deceased (made exhibit to the bill), and alleges that Maggie N. Cash is the same person as Maggie N. McCullars mentioned in the will, she being the widow of J. O. McCullars and having married A. J. Cash, and that Fannie McCullars Lyle is the same person as Fannie McCullars mentioned in said will. It is alleged: That, at the time of his death, J. O. McCullars owned the real estate situate in Talladega county, involved in this suit. That he died testate, leaving the will referred to, which was duly probated. That said real estate is now owned by the complainants as trustees under said will, but that complainants have no interest therein as individuals. That the testator left surviving him his widow, Maggie N (McCullars) Cash, and the following children: Charles A McCullars, J. Henry McCullars, Fannie L. (McCullars) Lyle Eddie Estelle (McCullars) Cash, John L. McCullars, Annie Kate (McCullars) Knight, Arthur Lane McCullars and James V McCullars. That Annie Kate Knight is 18 years of age, Arthur Lane McCullars is 15 years of age, and James V. McCullars is 12 years of age; the others being over 21 years of age.

It is further alleged that on May 29, 1920, and July 23, 1920, complainant Maggie N. Cash, as an individual, and her husband, A. J. Cash, executed two certain mortgages, both intended to convey the same property, the land here involved, to the First National Bank of Lincoln; that both said mortgages are void for the reason that the persons executing same had no authority to execute them and had no title to the lands, but that same constitute a cloud on the title of complainants as trustees under said will; and that complainants as such trustees are in peaceful possession of said lands, and respondent, claiming same to be valid liens, refuses to satisfy said mortgages on the records.

The prayer is for the cancellation of said mortgages.

The will of J. O. McCullars is as follows:

"Being of sound mind and disposing memory, I, J. O. McCullars, of said County in said State, do hereby make, publish and declare this my last will and testament:

"Item 1: It is my will that all of my just debts be paid by my executor as soon after my death as is convenient.

"Item 2: I hereby will, devise and bequeath unto Maggie N. McCullars, as trustee, for the purposes hereinafter stated, all of my property, of every kind, character, and description, real, personal and mixed, vested and contingent, but in trust, nevertheless, for the purposes and uses hereinafter stated and described.

"Item 3: The said Maggie N. McCullars, as such trustee, is hereby vested with full and complete power and authorized to sell any real or personal property which I may own, at public or private sale, with or without notice, to collect and receive all debts, notes, accounts and moneys, rents and payments to be made for or on account of my said estate; and she is invested with full authority to invest and reinvest, in such manner as she deems advisable, any of the funds of my estate. And she is hereby expressly charged with the duty of paying, not only the debts of my said estate, but of paying the premiums which shall become due upon the certain life insurance policy issued by the Mutual Life Insurance Company and reinsured by the Illinois Life Insurance Company upon the life of Lou R. McCullars, which policy, in the sum of Four Thousand Dollars, is payable to me upon the death of the insured, and upon the maturity of such policy, the said Maggie N. McCullars, as such trustee is authorized to receive the amount to be paid thereon.

"Item 4: After the payment of all my just debts as aforesaid, and the payment of the premiums of said policy as aforesaid, and after the payment of all necessary expenses of administering this trust, and for all taxes, repairs and insurance which may be necessary, and other proper expenditures on the part of such trustee, she shall annually divide the remaining income, rents and profits into such a number of parts as will be two more than the total number of my children living at the date of such division; that is to say, if I have then living five children, she shall divide the same into seven parts, or if six children into eight parts or if seven children, into nine parts, and after making such division, said Maggie N. McCullars shall retain two parts for her own use, behalf, and benefit, to be expended in such manner as she may desire, and the remainder of such parts

she shall retain to be used for the equal enjoyment, use and benefit of my then living children, until such times as one of my children shall reach the age of twenty-one years, or one of my daughters attains the age of eighteen years and marries, and thereafter she shall pay to such child his or her share of said incomes, rents, and profits, determined as hereinabove prescribed, and the remainder thereof to my said wife, for the purposes above stated, it being my intention that, until my children reach the age of twenty-one years, the expenditure of their portion of the rents, incomes and profits of my estate shall be made by my wife for their benefit, but after one of them so attains the age of twenty-one, or some daughter attains the age of eighteen and marries it is my desire that such an one shall receive direct his or her portion thereof.

"Item 5: Any child hereafter born of the marriage between myself and my said wife shall share equally with my other said children in my said estate, it being my intention to hereby provide for all my children, whether in in esse or not.

"Item 6: Should any of my children die, leaving children, such child or children shall receive thereafter the part or portion of my estate which would otherwise have been received by their said ancestor, which said portion shall be paid to their living parent, if any, and if not, shall be paid to my said wife, to be by her expended for the benefit of my said grandchildren.

"Item 7: Should my said wife die before the maturity of all of my children, then and thereafter my said trustee shall divide said funds into such number of parts as equals the number of my then living children, and shall pay over to such of my children as are then twenty-one years of age, or to such of my daughters, as have attained the age of eighteen and married, his or her portion, and the remainder he shall expend for the use and benefit of my then minor children.

"Item 8: Upon the arrival at twenty-one years of age of my youngest child then living, all of my property shall be converted into cash by my trustee, and such cash shall be divided among my children and my said wife, if she be then living, in the same proportion as hereinabove set forth; and if my said wife be then dead without having re-married, and leaving surviving her at her death children by such marriage, the same shall be divided between my said living children and their descendants in equal parts, giving to the descendents of any one of my children the share which their ancestor would have received had such ancestor been living; but should my said wife have so remarried and should she at her death, leave surviving her children born of such marriage, then it is my desire that the children of such marriage shall receive the share or portion of my estate which their mother would have received had she been living; but the fact of such survivorship, and of the minority of the children so surviving, shall not further postpone the conversion of my property into cash, and the division of the same among the persons to whom it belongs and herein provided for.

"Item 9: Having received, as guardian for my three children, Fannie Leora, Charlie Allen, and Joseph Henry, Two Hundred and Nine Dollars from the estate of their grandfather, Allen Hutto, I hereby devise and bequeath the same unto Maggie N. McCullars as trustee, to be by her, kept separate and apart from the other part of my estate, and to be invested and reinvested from time to time, and the said amount, together with all the interest thereon, to be held intact, and paid out, one third, to each of said children upon their respectively arriving at the age of twenty-one years.

"Item 10: Should any of my boys leave the home of my said wife before such child arrives at the age of twenty-one years, or should any of my daughters leave such home before they arrive at the age of twenty-one or unless they have arrived at the age of eighteen and married, then the share or portion of the income which should thereafter go to such an one so leaving, shall cease, and thereafter my trustee shall pay no portion of such income to such child so leaving such home. But, upon the arrival of such an one at twenty-one years of age, the share of the corpus of my estate (not the income thereof) shall be paid to such an one just as fully and in the same way and manner as if such an one had not previously left said home.

"Item 11: I hereby nominate and appoint my wife, Maggie N McCullars, as executor of this my last will and testament and as trustee under this my said will, and it is my wish and desire that upon the arrival...