First Nat. Bank v. Hartwell

• Citation: 168 So. 446,232 Ala. 413
• Decision Date: 21 May 1936
• Docket Number: 1 Div. 909
• Parties: FIRST NAT. BANK OF MOBILE et al. v. HARTWELL.
• Court: Supreme Court of Alabama

168 So. 446

232 Ala. 413

FIRST NAT. BANK OF MOBILE et al. v. HARTWELL.

1 Div. 909

Supreme Court of Alabama

May 21, 1936

Appeal from Circuit Court, Mobile County; J. Blocker Thornton Judge.

Suit in equity by Harry T. Hartwell against the First National Bank of Mobile, individually and as executor of the will of Guy J Hartwell, deceased, and others. From a decree overruling a demurrer to the bill, respondents appeal.

Reversed and remanded.

Wm. B & C.C. Inge, of Mobile, for appellants.

Harry T. Smith & Caffey and Frank S. Coffin, all of Mobile, for appellee.

THOMAS Justice.

This decision requires a construction of certain provisions of the will of Guy J. Hartwell, deceased, which was not necessary for decision in Hartwell et al. v. Mobile Towing &amp Wrecking Co., 212 Ala. 313, 102 So. 450.

In the former decision it was held that the trust was with limitation over to another on step being taken to intercept or subject moneys to be paid to the cestui que trustent; was valid and not contrary to public policy and to terminate the interest so provided by the testator for his brother. A discussion of this subject is found in Henderson et al. v. Henderson et al., 210 Ala. 73, 97 So. 353.

The same person files this bill to declare his interest in and to recover payments made by the personal representative to other legatees; his contention being that this was in contravention of complainant's right as heir at law of the testator to the portions of his property of which it is alleged that Guy J. Hartwell died intestate.

It will be noted that complainant filed the bill in this case on November 1, 1935, against appellants to set aside certain decrees of settlement, for an accounting, and prays a decree for moneys represented by the legacy in Guy J. Hartwell's will to Mrs. J.C. Pritchett by reason of her death before testator's. It is insisted by the appellant First National Bank of Mobile that such interest fell into the residue of said estate, and under appropriate provisions of the will were disposed of according to the manifest and expressed intent of the testator.

Mr. Hartwell's will was probated and letters testamentary issued on March 21, 1924. A report of partial settlement was made on June 29, 1925, distributing to the legatees $1.75 for each $1 bequeathed. In that report it was made known to the court that Mrs. J.C. Pritchett, a legatee, had died before the death of the testator and her legacy had lapsed; that appellee was the only heir at law of the testator, and the legacy to him had lapsed or terminated, under the terms of the will, by the creditor's effort to appropriate appellee's interest. Hartwell et al. v. Mobile Towing & Wrecking Co., 212 Ala. 313, 102 So. 450. It was ordered that July 22, 1925, was the day fixed for such partial settlement, and directed that due notice be given by publication, and citation issued to Harry T. Hartwell and other resident parties at interest. This record shows that citation as to the proposed settlement was personally served on Harry T. Hartwell. At the appointed time for such partial settlement, a decree was entered allowing the accounts filed by the personal representative and ordering a distribution to all legatees named in the will, except to Mrs. J.C. Pritchett, whose legacy had lapsed by her untimely death, and to Harry T. Hartwell, whose legacy had lapsed by reason of said creditor's suit. Hartwell et al. v. Mobile Towing & Wrecking Co., supra.

Four years later, on the 26th day of September, 1929, appellant, First National Bank of Mobile, as executor of the estate of Guy J. Hartwell, deceased, filed a report and accounts for final settlement; the recitations in the report for final settlement being substantially the same as those in the report for partial settlement with respect to the several parties in interest. The court's order appointed October 22, 1929, as the day for passing on that petition, and directed that notice issue and publication be made, and that citation be personally served on the legatees. "No reference was made therein to Harry T. Hartwell"; his interest under the will had been declared terminated by rendition of the decree on December 18, 1924.

On the day appointed--October 22, 1929--a final decree was rendered, reciting notice by publication as ordered, passing upon and allowing the accounts of such personal representative, and directing the amounts to be paid each of the legatees. It did not include the lapsed legacies of Mrs. J.C. Pritchett and Harry T. Hartwell for reasons we have indicated.

The bill of complaint is aided by exhibits (Grimsley v. First Ave. Coal & Lumber Co., 217 Ala. 159, 115 So. 90); as the order appointing October 22, 1929, as the day for final settlement, the decree so rendered on that date, and the order of confirmation. The answer is also aided by exhibits; as reports and decrees with reference to partial settlement.

The ruling on demurrer, from which this appeal is taken, must be considered with the bill and its exhibits, without regard to the answer and its exhibits; and all doubt as to pleading is resolved against this pleader.

An effort is made by appellee and his bill to set aside the final decree, (1) on the ground that no notice of such petition and action of the court was ever served upon him, and (2) to charge the appellant bank with the legacy to Mrs. J.C. Pritchett, and charge the legatees with their proportionate parts, which complainant claims should have gone to Mrs. J.C. Pritchett had the legacy to her not lapsed by reason of her death preceding that of the testator; that is, the bill claimed that the legacy to Mrs. J.C. Pritchett was not disposed of by the residuary clause of the will; that as to that legacy decedent was intestate, and, as the only heir at law and next of kin of Guy J. Hartwell, deceased, complainant took the same.

The law applicable to several phases of the will in question is well understood and need not be restated. The testator's intention, if legal, is the law of the instrument (Ralls et al. v. Johnson et al., 200 Ala. 178, 75 So. 926; You v. Flinn, 34 Ala. 409; Henderson et al. v. Henderson et al., 210 Ala. 73, 97 So. 353); and such intention must be gathered from the whole will when all of its parts are construed in a right relation to each other, taking due consideration of the testator's scheme manifested by the will itself, so as, if possible, to form one consistent whole. In case of an apparent repugnancy, the general intent of the testator, as declared by the will, must be preferred to the special intent. The residuary clause, notwithstanding its position, is in legal effect the last clause of a will (Ralls et al. v. Johnson et al., supra; Myrick v. Williamson et al., 190 Ala. 485, 67 So. 273).

The questions recur as to the intent of the testator: Was the interest of Mrs. J.C. Pritchett disposed of by other provisions of the will? Did Mr. Hartwell die intestate as to that legacy, or was it devised, bequeathed, and effectually disposed of by the residuary clause of the will? If the residuary clause was effective as to it, that property was not the subject of the statute of descent and distribution.

There are two provisions in the will which refer to Mrs....