Frazer v. First Nat. Bank, 1 Div. 973

• Court: Alabama Supreme Court
• Writing for the Court: THOMAS, Justice.
• Citation: 178 So. 441,235 Ala. 252
• Decision Date: 20 January 1938
• Docket Number: 1 Div. 973
• Parties: FRAZER et al. v. FIRST NAT. BANK OF MOBILE.

178 So. 441

235 Ala. 252

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

1 Div. 973

Supreme Court of Alabama

January 20, 1938

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

Suit in equity by the First National Bank of Mobile, as trustee, against Julian H. Watters, and others, in which there was a reference to ascertain fees of counsel, etc.

From a decree on exceptions to the report of the register, respondent Julian A. Watters, by his guardian and litem, Mell A. Frazer, as guardian ad litem, Mell A. Frazer, as guardian ad litem, E.W. Faith and L.F. Holland appeal.

Corrected and affirmed.

ANDERSON, C.J. and BROWN, J., dissenting in part.

Faith & Holland and Mell A. Frazer, all of Mobile, for appellants. [178 So. 442]

Harry T. Smith & Caffey and Stevens, McCorvey, McLeod, Goode & Turner, all of Mobile, for appellee.

THOMAS, Justice.

The appeal is from a decree upon exceptions to the report of the register.

The assignments of error present questions for decision to the effect that the decree is infected with error (1) in sustaining the exceptions filed by the First National Bank of Mobile as a trustee to the report of the register allowing $48,376.72 for fees and compensation to the solicitors of record for joint services rendered to the minor Julian A. Watters, III, in the instant cause; (2) in overruling the exceptions to the report filed by the register of the solicitors for Julian A. Watters, III, "that there is in the hands of the First National Bank of Mobile as Trustee under the will of Julian A. Watters, Sr., $2,867.32, representing income due Julian A. Watters, Jr., as of June 11, 1935 and now due his estate, and which should be paid forthwith to Mrs. Madelyn Watters, as Executrix of the Will of Julian A. Watters, Jr."; and (3) in ordering "that fifteen hundred dollars ($1500.00) is a reasonable fee for Messrs. Harry T. Smith and Caffey for their services in the Circuit Court and in the Supreme Court."

The respective rulings will be discussed in the order indicated.

In such a proceeding this court takes judicial knowledge of, and will look to, necessary antecedent cases. Snodgrass v. Snodgrass, 217 Ala. 128, 115 So. 21; Cartwright v. Hughes, 226 Ala. 464, 147 So. 399; Nashville C. & St. L. Ry. Co. v. Crosby, 194 Ala. 338, 70 So. 7; Wade v. Kay, 210 Ala. 122, 97 So. 129; Alabama City G. & A. Ry. Co. v. Bates, 155 Ala. 347, 46 So. 776, and McGowin v. McGowin, 232 Ala. 601, 169 So. 232. Such a reference to the antecedent decisions is necessary in determining the minor's right to solicitors' fees. First National Bank v. Watters, 220 Ala. 356, 125 So. 222, and Watters v. First National Bank, 233 Ala. 227, 171 So. 280.

The first decision (First National Bank v. Watters, 220 Ala. 356, 125 So. 222) recognized the power of a court of equity to award advancements to the beneficiary of a trust for infants and to other than infants who are beneficiaries, before the time fixed by the creator of the trust, in order to give effect to the ultimate intention of him who set up the trust, when it is shown that no contingency exists which would ultimately defeat the right of the beneficiary for whose benefit the fund is to be applied.

In the second appeal (Watters v. First National Bank, 233 Ala. 227, 171 So. 280) it was held that "under will providing that balance of income arising from testator's estate after certain monthly payments should, so long as testator's wife lived, be divided between wife and children, share and share alike, fixing age 35 as maximum period for final distribution as to sons, providing that, when oldest child reached age of 21 years, corpus of estate was to be equally divided, one share for each child and one share for wife, and bequeathing undistributed portion of estate to grandchildren, testator's only son did not have vested interest at time of his death when 27 years old, but grandson acquired vested interest in entire estate, as against son's widow, to whom he bequeathed his entire estate." Headnote 11.

"Where, under will, accumulated income was to be paid over on final distribution, party entitled to corpus held entitled to accumulated income." Headnote 12.

In accord with well-established rules of testamentary construction, this court declared on the last appeal, Watters v. First Nat. Bank of Mobile, 233 Ala. 227, at pages 237, 238, 171 So. 280, 290:

"Our conclusion is that this appellant, the grandson, has now a vested interest in the entire estate. The result of a descent of the estate to blood relation of the testator has been said to be a circumstance usually considered of some significance in the construction of wills. Bingham v Sumner, 206 Ala. 266, 89 So. 479; 69 Corpus Juris 100

"As to the ultimate disposition of the corpus, testator's desire was that his children receive it, provided they reached a given age. But he makes it clear that, if they do not live to obtain the corpus, the estate should go to their issue, if any--his grandchildren--using the unambiguous language, 'I give, devise and bequeath said undistributed portion of my estate to my said grand-children, share and share alike'--thus foreclosing any power of disposition of the corpus by any of his children prior to the time of a final distribution of his or her share.

"We are also persuaded the fund referred to as the 'accumulated income' follows [178 So. 443] the same course of the corpus, and as a part thereof likewise goes to appellant. This accumulated income was to be paid over upon final distribution, and it therefore becomes a part of that fund. Julian, Jr., did not live to acquire anything by a final distribution, and we conclude, as stated, that this fund follows the corpus of the estate. And the statute (section 6914, Code of 1923 [section 3410, Code of 1907]), is, in our opinion, without application to the situation here presented. Henderson v. Henderson, 210 Ala. 73, 97 So. 353."

It is thus indicated that the entire estate (composed of original corpus and accumulated income) was settled by decision on last appeal, and that the questions raised and decided were the result of a serious litigable controversy, and that decision necessary to a right conduct and distribution of the trust estate.

To an understanding of the facts under which the services by appellant and associates of counsel for appellant were rendered, it should be said that Julian A. Watters died in 1913, leaving a large estate, and his survivors, his wife (Mrs. Edgar A. Du Mont) and one child (Julian, Jr.). When Julian, Jr., became 21 years of age, it became necessary to determine whether there was a contingency which would ultimately defeat the right of the beneficiary, and to whom the fund should be applied. This court so declared in Watters v. First National Bank of Mobile, 233 Ala. 227, 171 So. 280.

This will was dated April 29, 1913. In June, 1935, the child, Mr. Julian A. Watters, Jr., died, leaving his widow, Mrs. Madelyn Watters, and one child Julian A. Watters, III, the grandchild of testator. He left a will devising and bequeathing his estate to his widow. The trustee named by will of Mr. Watters, Sr., employed distinguished counsel as its representative and to advise as to the effect of the death of testator's son Julian A. Watters, Jr., upon the trust, and to disposition of the estate composed of corpus and accumulation; that is to say, whether Julian A. Watters did or did not have a vested estate that passed to his wife under Julian, Jr.'s will. The opinion rendered to the trustee by its counsel was to the effect that the estate was vested in Julian, Jr., and passed by his will, but conceded that with plausibility it could be insisted that such ultimate estate was not in Julian, Jr., but vested in testator's grandchild.

The opinion rendered to the trustee, which is Exhibit I, among other things said:

"Viewing the will, however, as a whole and considering the fact that testator's children were the primary objects of his bounty, it is our opinion that under the provisions of the will, to the effect that when the oldest child reaches twenty-one 'the corpus of my estate shall be equally divided, one share being set apart for the benefit of each of my children, and another share set apart for the benefit of my wife', and in view of other provisions in the will treating the share so set apart as if it were the equitable property of the child to whom set apart, these shares were distributed within the meaning of the will and each child took a vested interest therein which would pass by will or by inheritance.

"This construction is tacitly put on this will in First National Bank v. Watters, [220 Ala. 356] 125 So. 222, though the specific question was not there raised. However, that case does treat the interest of Julian A. Watters, Jr., as a vested interest, enjoyment of which was merely postponed. The Court, so treating this interest, applied the doctrine that a court of equity has power to hasten the enjoyment of a trust fund, provided 'no contingency appears which would ultimately defeat the right of the beneficiary for whose benefit the fund is to be applied.' The opinion accordingly carries the implication that there was no contingency which could 'ultimately defeat' the right of Julian A. Watters, Jr., to the share of the estate set apart to him.

"While we believe that this is the correct construction of the will, we must concede that the question is debatable, and such being the case, it is our opinion that the only safe course for you, as trustee, to pursue, is to have the will specifically construed in this respect before taking any steps that may subject you to liability in the event the construction we place on the will proves erroneous.

"As to whether the death of Julian A. Watters, Jr., terminates the trust as regards his

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