First Nat. Bank v. Robertson

• Decision Date: 27 March 1930
• Docket Number: 6 Div. 492.
• Parties: FIRST NAT. BANK OF ONEONTA ET AL. v. ROBERTSON.
• Court: Alabama Supreme Court

127 So. 221

220 Ala. 654

FIRST NAT. BANK OF ONEONTA ET AL. v. ROBERTSON.

6 Div. 492.

Supreme Court of Alabama

March 27, 1930

Appeal from Circuit Court, Blount County; O. A. Steele, Judge.

Bill in equity by the First National Bank of Oneonta and others against Mildred May Alma Green and others, with cross-bill by J. O. Robertson, as guardian for Ellen Lenora Green, a non compos mentis, and Mildred May Alma Green, a minor. From the decree, complainants and cross-respondents appeal.

Modified and affirmed.

J. T Johnson, of Oneonta, for appellants.

James Kay, of Oneonta, for appellee.

FOSTER J.

As we view this case, it is immaterial whether the minor Mildred May Alma Green, not a child of M. M. Green, was duly adopted by him in order for her to be interested in the lands owned by L. P. M. Green, deceased, a share of which M. M. Green inherited from him. L. P. M. Green died in 1907, leaving to his heirs the land involved, with no will so far as the purposes of this case are concerned. All his personalty has been set apart to the widow as exempt. She is still living. M. M. Green was one of ten children, heirs of L. P. M. Green and survived his father by over twenty years. From this situation, M. M. Green inherited, as such heir, an undivided one-tenth interest in the land, subject to the widow's rights. Immediately on the death of his father, it became, to that extent, his own, and a part of his real property, but subject to an administration of the estate of L. P. M. Green. It was none the less his property, though undivided and not administered. It was then, upon the death of his father capable of sale or other disposition by him, so that his successors in title could acquire such interest as he possessed. 18 C.J. 894; Dent v. Foy, 206 Ala. 454, 90 So. 317; Lester v. Stroud, 212 Ala. 635, 103 So. 692; Burke v. Cunningham, 217 Ala. 188, 115 So. 182.

M. M. Green left a will which was duly probated, by which he bequeathed to his wife for her natural life all of his property, real and personal, and at her death he provided that said property or the proceeds thereof "shall descend in fee simple to my adopted daughter, Alma Green." The meaning here is clear. It shows the intent of testator, and there is no contention that "Alma Green" here mentioned does not refer to the minor Mildred May Alma. It seems to be the idea of counsel for both parties that, in order for the minor to have an interest in the lands, she must have been capable of inheriting from M. M. Green, and to have inherited from L. P. M. Green; and to that end that proper adoption proceedings were necessary, or that the court of chancery decree specific performance of an agreement effective for that purpose. But, as we view the facts disclosed, this idea loses sight of the fact that this minor can only take by virtue of the will of M. M. Green; he having made a will disposing of all his property. In so taking under the will, the minor need not occupy a place as an heir of L. P. M. Green, though it were possible to do so by authority of a lawful adoption by M. M. Green. Russell v. Russell, 84 Ala. 48, 3 So. 900. If the former had died after the death of M. M. Green, then it would be necessary for the minor to occupy the place of an heir of the estate of L. P. M. Green, in order to share in his estate; there being no will disposing of his property. The same conclusions have equal application to the widow of M. M. Green. The question here, however, is whether the widow and minor acquired, in a legal manner, an interest in the lands of M. M. Green, who before his death had inherited from his father the rights here involved. The will of M. M. Green confers upon the widow and this minor, each separately, such an interest. It appears that the widow who took a life estate is a non compos mentis, and that J. O. Robertson is the guardian both of her estate and that of the minor.

The decree of the court was that the minor was duly adopted by M. M. Green, and thereby became entitled to inherit his estate including the one-tenth distributive share in the estate of L. P. M. Green. The decree does not adjudge a life interest to the widow under the will.

We cannot agree with the court in this conclusion. Our judgment is that the will of M. M. Green controls the rights of his widow and of the minor Mildred May Alma Green, and that the adoption proceedings do not affect the question, whether they are sufficient or not. Russell v. Russell, supra.

This minor is a ward of the chancery court, as it has taken jurisdiction of an estate in which she is a party. Any matter affecting a minor may become the subject of chancery jurisdiction, and it is immaterial whether that jurisdiction is invoked by bill, petition, or other pleading. Allison v. Cox, 218 Ala. 548, 119 So. 675; Martin v. Barnett, 205 Ala. 220, 87 So. 324; McCreary v. Billing, 176 Ala. 314, 58 So. 311, Ann. Cas. 1915A, 561; Proctor v. Scharpff, 80 Ala. 227.

The same is true as to non compos...