Galin v. Johnson

• Decision Date: 21 September 1984
• Citation: 457 So.2d 359
• Parties: Jerry GALIN, Fred Galin and Diann Richter v. Katherine JOHNSON, et al. 83-553.
• Court: Alabama Supreme Court

Page 359

457 So.2d 359

Jerry GALIN, Fred Galin and Diann Richter v. Katherine JOHNSON, et al.

83-553.

Supreme Court of Alabama.

Sept. 21, 1984.

Don L. Hardeman of Hardeman, McClellan & Copeland, Cullman, for appellants.

Henry T. Henzel, Birmingham, and Bland, Bland & Weldon, Cullman, for appellee Katherine Johnson.

John Mark Sapp of Sapp, Sapp & Sapp, Cullman, for appellees Susie Smith, Everett Galin, Amanda Williamson and Fritz Galin.

SHORES, Justice.

Lena Galin died testate on January 8, 1978. Her will was admitted to probate, and letters testamentary were granted her executrix, Katherine Johnson, on May 6, 1982, by the Probate Court of Cullman County, Alabama.

The beneficiaries under the will are her surviving children and the three children of one of her sons. Under the specific provisions of her will, Lena Galin granted her executrix broad discretionary powers to administer her estate. The will specifically provides:

"None of the parties named as executrix or executors herein shall be required to make bond as such and none of them shall be required to make any settlement accounting or inventory in or out of Court as such executrix or executor."

The will also authorized and empowered the executrix to sell the estate property, real and personal, and to divide the proceeds among the beneficiaries of the will. She granted the executrix the power to make the appropriate deeds and conveyances and to sell the property for cash or credit. The will provided that the executrix could exercise the same "discretion as [testatrix] could do if living." It also provided that "[a]ny beneficiary hereund[er], including the executrix or executors is authorized and empowered to purchase from the executrix or executors."

Katherine Johnson sold three parcels of real estate included in the estate on January 7, 1983. A parcel consisting of fifty acres she sold to herself. Another parcel containing sixty acres was sold to her daughter, Amanda Williamson, and a third parcel containing some twenty acres was sold to her sister, Susie Smith, who is also a beneficiary under the will. The total sales price for the three parcels was $70,875.00

Following the sales, the executrix informed the grandchildren beneficiaries of the sales price and tendered them checks each in the amount of $3,791.00, equal to their pro rata share of the proceeds from the sales. The administration of the estate was removed from the Probate Court of Cullman County to the Circuit Court of Cullman County on the petition of Jerry Galin, one of the grandchildren beneficiaries. On April 20, 1983, he and the two other grandchildren beneficiaries filed suit against Amanda Williamson, Susie Smith, Fritz Galin, and Everett Galin, heirs and/or purchasers from the estate, and against Katherine Johnson individually and in her capacity as executrix of the estate.

In Count I of their complaint, the grandchildren allege that the sale of the land was illegal and improper and ask that the sales be set aside and that the land be sold at public auction. Count II of their complaint alleges that the executrix wasted and converted the estate and seeks her removal as executrix and an accounting of the assets of the estate.

In response to the complaint, Katherine Johnson, on May 23, 1983, filed a motion for a more definite statement and a motion to dismiss. On May 24, 1983, the remaining defendants also filed a motion to dismiss and a motion for a more definite statement. In each of their motions, the defendants allege that the sales and purchases of the property complained of in the complaint were properly made under the authority and the power granted in the last will and testament of Lena Galin, and that it affirmatively appears in the allegations of the complaint and the accompanying exhibits that the sales and purchases of the estate lands were proper.

The hearing on the defendants' motions was held on June 2, 1983. At that time, Katherine Johnson submitted a brief in support of her motions. The trial court gave the plaintiffs two weeks to respond to Mrs. Johnson's brief and gave them leave to amend their complaint. Plaintiffs filed their brief on August 26, 1983. Subsequently, on January 3, 1984, the trial court dismissed the complaint and made the following findings:

"The Last Will and Testament of Lena Galin provided for a sale of any of the subject property to any beneficiary under said Will, including the Executrix. There is no public policy, statutory, or case law, which prohibits such a Will provision and such provision will be given the intended effect. This authorization by the testator, by implication, authorizes a sale, either public or private, with or without notice. The limitations appear to be that the Executrix must use such discretion as a testator would use and with regard to the sales of the property in question, the sales should result in a 'fair price' and be conducted and concluded in 'good faith.' In light of these provisions of law, none of the allegations of the Complaint state a cause of action."

Under the trial court's order, the plaintiffs had twenty days in which to amend their complaint. They declined to amend and filed this appeal.

When reviewing the grant of a motion to dismiss, the proper test to be applied is "that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Dempsey v. Denman, 442 So.2d 63, 65 (Ala.1983), quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957). Upon consideration of such a motion, the allegations of the complaint are construed in a light most favorable to the complainant, with all doubts and allegations resolved in his favor. Weeks v. East Alabama Water, Sewer and Fire Protection District, 401 So.2d 26 (Ala.1981).

The intention of the testator is the law of the will, which should be considered as a whole, giving effect to each provision where possible. It is the Court's duty to carry out the testator's intention where that intent can be ascertained. Smith v. Smith, 387 So.2d 134 (Ala.1980); Cates v. Bush, 295 Ala. 256, 326 So.2d 742 (1976). To determine that intent we look to the four corners of the instrument. Rowe v. Newman, 290 Ala. 289, 276 So.2d 412 (1972). If the language of the will is unambiguous and clearly expresses the testator's intent, that language must govern. Matter of Estate of Hensley, 413 N.E.2d 315 (Ind.App.1980).

Appellants argue that the sale by the executrix to herself is voidable, even though the will allows such a conveyance. The rule forbidding the purchase of estate property by an executor at his own sale does not apply where the will provides otherwise, as in the present situation. 33 C.J.S. Executors and Administrators § 288 (1955).

The language of paragraph four of the testatrix's will clearly shows her intent to give her beneficiaries or any of them, including her executrix or executors, the power to buy the estate property. It reads:

"4. I nominate and appoint Katherine Johnson as executrix of this my last will and testament, and if for any reason she fails, declines or refuses to serve, I appoint Jerry Galin and Fred C. Galin as executors hereof, and if either of them fails, declines or refuses to serve, then the other shall serve with all the authority and powers conferred herein on both. None of the parties named as executrix or executors herein shall be required to make bond as such and none of them shall be required to make any settlement accounting or inventory in or out of Court as such executrix or executor. My executrix or executor, whether one or more, is authorized and empowered to sell all the property comprising my estate, whether real, personal or mixed; and divide the proceeds among the beneficiaries hereunder, and any sum which shall be due Ernest R. Galin from the proceeds of any sale shall be managed by my executors hereunder as Trustees for his benefit without bond or accounting. Such Trustees in the management thereof to have the same authority and discretion as if the Trust property were their own. To carry out the provisions of the will, my executrix, or the one acting as executor, is authorized and empowered to sell any property herein given, devised and bequeathed, and to make appropriate deed and conveyances to the purchaser or purchasers, using such discretion as I could do if living. ...