First Nat. Bank v. Sheehan

• Decision Date: 28 January 1930
• Docket Number: 3 Div. 916.
• Citation: 220 Ala. 524,126 So. 409
• Parties: FIRST NAT. BANK OF MONTGOMERY ET AL. v. SHEEHAN.
• Court: Alabama Supreme Court

126 So. 409

220 Ala. 524

FIRST NAT. BANK OF MONTGOMERY ET AL. v. SHEEHAN.

3 Div. 916.

Supreme Court of Alabama

January 28, 1930

Appeal from Circuit Court, Montgomery County; Walter B. Jones Judge.

Petition in equity by Elizabeth W. Sheehan against the First National Bank of Montgomery, as trustee under the will of William T Sheehan, deceased, Charles Winston Sheehan, William Thomas Sheehan, Anne Garrett Sheehan, and Irene Houston Sheehan. From a decree for complainant, respondents appeal. Affirmed.

Steiner Crum & Weil and John L. Goodwyn, all of Montgomery, for appellants.

Ball & Ball, of Montgomery, for appellee.

THOMAS J.

The appeal requires a construction of the will of Capt. William T. Sheehan. The reporter will insert plat A in the report of this decision.

The late Capt. William T. Sheehan at his death left a will in which he created a trust estate, naming therein appellant First National Bank of Montgomery as trustee. His beneficiaries were his wife, Mrs. Elizabeth W. Sheehan, one of the appellees, and their four children, three of whom are minors and one of age. The trustee took possession of the trust property, and has been administering the same under the terms of said will. At his death testator owned, and under the terms of his will devised to said trustee, as a part of the trust estate, lots 3 and 4 in Cloverdale, shown by the map exhibited as a part of the bill. On these lots is situated the Sheehan homestead, occupied by the family as a home. These lots faced, as will be seen from the map, 75 feet, respectively, on Cloverdale road. Adjacent thereto are lots 5 and 6 of the same plat, which were and are owned by Mrs. Sheehan, the widow of testator and the petitioner appellee.

Mrs. Sheehan recently, and after the death of testator, desired, intended, and contracted to erect on lots 5 and 6 (her individual property) two residences as an investment; and without having these lots surveyed, so as to ascertain their true boundary line, but thinking that she knew their true boundary lines, as with relation to that of the trust property, undertook to point out to the contractor the boundary line between her lot 5 and lot 4 of the estate of testator. She made a mistake as to that boundary line, and her contractor erroneously constructed one of the residences contracted for by her, a frame one-story house in the rear of the property, and built the same almost entirely on lot 4, belonging to the trust estate. This error was not discovered until after the house had been completed, and when she undertook to borrow money (by way of mortgage on the property) to complete payment of same and discharge the builder's lien, when for the first time the property was surveyed. She then discovered that this house erected by her was located partly and largely on the trust estate's land and on the rear of lot 4.

Complainant then approached the First National Bank, as said trustee of her husband's estate, and requested it to convey to her the parcel or part of lot 4 on which her house was erroneously located, as indicated on exhibit map as parcel A. It will be seen that it is a parcel carved out of lot 4 belonging to the estate of testator and held in trust by the trustee, and on which complainant's house is located, and which gives access to her other part of lot 5. The bank as trustee made reply that, if it had the power under the will to sell and convey this property to her, it would do so at and for an adequate consideration, yet felt that under the terms of said will, as trustee, it had not the authority to sell and convey this parcel of land to her to obviate her mistake and relieve her of difficulty, for one reason, that it was only a strip or part of the homestead, and she was one of the cestuis que trust under the will. The bank, as trustee, further replied that it did not believe that under the terms of said will it had any right to sell the homestead, except as a whole, rather than in strips or parcels, and had no right to sell to her, as one of the beneficiaries, a strip or parcel, thereby benefiting her, perhaps to the damage of the remaining cestuis que trust. The insistence was and now is that, if the trustee had or has the power, under the terms of the will, to sell and convey this strip or parcel to one of the beneficiaries, it would be willing so to do at and for an adequate consideration, and questions its right to so sell under the terms of the will.

Complainant, as one of the beneficiaries of the estate, filed the necessary petition to remove said estate from the probate court to the circuit court, in equity, which was done. Thereafter she filed this petition in said cause, asking said court to construe the will of her late husband, alleging that it was ambiguous, and that its intent was and should be so construed by the court to authorize the trustee, under paragraph 1 of item 3 of said will, to act in accordance therewith and to sell and convey said strip of land to her, one of the beneficiaries, at and for a full and adequate consideration. Demurrers and answer thereto were filed by the respondent and by the guardian ad litem for the minors. In the demurrers and answer of appellant bank, it took the position that the terms of said will, and particularly paragraph 1 of item 3, which is the part involved here, are not ambiguous; that the intent of the testator is shown to have been and to be that, while the bank, as trustee, was authorized in its discretion to sell and convey the entire homestead to any bona fide or disinterested purchaser, it was not intended and was not given the authority to split up the homestead and sell and convey parcel A thereof to any one or to a beneficiary.

Testimony of competent and experienced real estate men of this community was taken by all parties in support of the petition and answer. After consideration thereof, and the said will, the trial court rendered its decree, holding that the will was ambiguous and construing paragraph 1 of item 3 of testator's will to give the trustee the right to sell this parcel to Mrs. Sheehan, one of the beneficiaries, and fixing an adequate consideration at $700, from which decree this appeal is prosecuted.

It is stated in brief of distinguished counsel that not one of the respective parties has fault to find with the just and adequate consideration fixed under the evidence. It is further stated by counsel that, if the terms of the will give the trustee a discretion to sell, it is perfectly willing to exercise that discretion and sell and convey the parcel, on which complainant's house is erroneously located, to Mrs. Sheehan.

The assignments of error 1 to 7, inclusive, all go to the ruling of the trial court in overruling the contentions raised by this trustee and appellant. Each of these assignments is so closely interlocked that, following the practice approved and commended by this court in Southern Ry. v. Cates, 211 Ala. 282, 100 So. 357, Polytinsky v. Johnston, 211 Ala. 99, 99 So. 839, and Seeley v. Curts, 180 Ala. 445, 61 So. 807, Ann. Cas. 1915C, 381, the brief groups the assignments of error and directs attention thereto as if separately presented in argument.

In the first place, it is admitted that a bill or petition will not lie to construe an unambiguous will. Hoglan v. Moore, 219 Ala. 498, 122 So. 824; City Bank v. McCaa, 213 Ala. 579, 105 So. 669; Birmingham Trust v. Cannon, 204 Ala. 336, 85 So. 768; 40

Cyc. 1845. Pertinent provisions of item 3, subsection 4, of said will are:

"(4) My said wife shall have the right to dispose of such portion of the trust estate as may remain at her death by her last will and testament, but should she fail to dispose of said property by a will then the same shall be distributed share and share alike to our children, the child or children of a deceased child, if any, taking the parent's share. Said trustee shall hold in trust and distribute as it sees proper the portion which go to a minor beneficiary under the terms hereof until such minor, reaches the age of twenty-one years." (Italics supplied.)

The only beneficiaries under the will of the testator were appellee and her children. One of said children is of legal age, and has consented to the sale at the price fixed by the court, which is, in all respects, full or adequate. The other three children are minors, and cannot legally speak for themselves. It is also apparent from the testimony that no one can be hurt by the decree rendered. To the contrary, the amount received for this small parcel of land will make it productive, as earning interest for the wife, and it is unproductive now. It is also established that the salability of the homestead will not be affected, and probably its value will not be reduced, certainly not more than that sum now added by the sale to the corpus of the trust.

Inspection shows that the provision in the will with reference to the power of sale of the home place is couched in such language that the trustee is in doubt as to whether it has the right to make the sale of a portion of the home place or homestead to one of the beneficiaries under the will. The trust officer of the bank has testified to that effect. The questions raised by the trustee justify it in insisting that it be instructed and guided in the administration of the estate under the terms of the testamentary trust, as affecting the cestuis...