George v. Widemire

• Decision Date: 12 March 1942
• Docket Number: 7 Div. 649.
• Parties: GEORGE v. WIDEMIRE.
• Court: Alabama Supreme Court

7 So.2d 269

242 Ala. 579

GEORGE v. WIDEMIRE.

7 Div. 649.

Supreme Court of Alabama

March 12, 1942

Rehearing Denied April 16, 1942.

Appeal from Circuit Court, Talladega County; Lamar Field Judge.

London & Yancey, Fred G. Koenig, Sr., and Frederick Koenig, Jr. all of Birmingham, for appellant.

C.W. Stringer and Knox, Dixon, Dixon & Wooten, all of Talladega, for appellee.

LIVINGSTON, Justice.

D.A Parker, a resident of Sylacauga, Talladega County, Alabama, died at Sylacauga in July 1930, leaving the following instrument as his last will and testament:

"State of Alabama.

"Talladega County.

"I, D.A. Parker a resident of Talladega County, Alabama, and over the age of twenty-one years of sound mind and of a disposing memory do hereby make and publish my last will and testament.

"First. I will that all my debts be paid as soon as practical after my death.

"Second. I will to my wife Lutie O. Parker a life state in and to all the real estate personal property, including stocks, bonds, notes and life insurance, except one policy in the Pacific Mutual which is payable to my daughter Grace Parker Webster, now residing in Dallas, Texas.

"Third. I bequeath to my four children or their heirs, share and share alike in and to any real or personal property left from my estate at the death of my wife.

"Fourth. I appoint my son, Howard A. Parker now of Dublin, Georgia, as executor of this my last will and testament and declare that he shall not be required to give bond for the performance of his duties hereunder. But he shall make a complete inventory of all property at my death and render his mother yearly statements of the estate during her life, and at her death make a complete settlement with my other children or their heirs.

"Witness my hand this the 29th day of March, 1924.

"Witness D.A. Parker, Seal.

"J.R. Blankenship

"George J. Atkinson"

The will was duly admitted to probate on October 14, 1930, and letters testamentary issued to Howard A. Parker, who proceeded to administer the estate during the lifetime of the widow, Mrs. Lutie O. Parker, who died on June 10, 1934. Christine Parker George, one of the four children referred to in the will and a resident of the state of California, died intestate in that state in January 1933, leaving surviving her husband, Edward Palmer George, Sr., the appellant, and one son, Edward Palmer George, Jr. On September 10, 1934, appellee, E.L. Widemire, was duly appointed guardian of the estate of Edward Palmer George, Jr., a minor, by the Probate Court of Talladega County, Alabama.

On May 30, 1935, Howard A. Parker made final settlement and distribution of the estate of D.A. Parker, deceased, and appellee, E.L. Widemire, as guardian of the estate of Edward Palmer George, Jr., received for his ward, among other things, a net one-fourth distributive share of said estate, being the same share which his ward's mother, Christine Parker George, deceased daughter of D.A. Parker, would have received had she survived her mother, Mrs. Lutie O. Parker, owner of the life estate under the will.

The property received by E.L. Widemire, as guardian of the estate of Edward Palmer George, Jr., from the distribution of the estate of D.A. Parker, deceased, consisted of the following: cash $3.07; common stock, 22 1/2 shares of the capital stock of the Parker Gin Company, Inc., 15 3/4 shares of the capital stock of the Sylacauga Bonded Warehouse, Inc., and 12 1/2 shares of the capital stock of the Sylacauga Fertilizer Company, Inc.

On June 9, 1938, the guardianship of the estate of Edward Palmer George, Jr., a minor, was removed from the Probate Court of Talladega County, Alabama, to the Circuit Court of Talladega County, in equity.

On June 10, 1938, Edward Palmer George, Sr., the father of Edward Palmer George, Jr., under and by virtue of the provisions of section 8237 et seq., Code of 1923, Code 1940, Tit. 21, § 109 et seq., filed in the Circuit Court in equity of Talladega County a written application for an order of removal of the property of the minor, Edward Palmer George, Jr., to the state of California, alleging that the applicant and minor were residents of that state that Edward Palmer George, Sr., had been duly appointed guardian of the person and estate of Edward Palmer George, Jr., a minor, by the Superior Court of the state of California in and for the county of Los Angeles, and had made good and sufficient bond for the faithful performance of the duties of such guardian.

E.L. Widemire, as guardian, answered the application and made his answer a cross-bill. The amended answer and cross-bill alleges, in substance, that the father claims an interest in the property in the hands of E.L. Widemire, the Alabama guardian, adverse to that of the minor child, the father claiming an undivided one-half interest in and to the property in the custody and control of E.L. Widemire as Alabama guardian, which he received as the minor's distributive share of the estate of D.A. Parker, deceased; that the Alabama guardian has filed proceedings in the Probate Court of Talladega County to sell the stocks as required by section 74 of the Constitution of Alabama; that the father of said minor has obtained an injunction in the federal court against such sale; that all of the property in his hands as guardian is the sole property of the minor; that it is to the best interest of the minor that the stocks be sold for reinvestment.

The answer of petitioner and cross-respondent to the cross-bill alleges that he, as the husband of Christine Parker George, does claim an undivided one-half interest in and to the stocks above mentioned by virtue of the laws of the state of California; that under the laws of California the stocks may be retained as an investment of the ward's estate; that it is not to the best interest of the minor that the stocks be sold for reinvestment; that the efforts to sell said stocks and to prevent their removal from Alabama to the custody of the California guardian were not in furtherance of the best interest of the minor, but were made to further the interest of E.L. Widemire and Howard A. Parker.

It will be observed that Christine Parker George, a daughter of D.A. Parker, died after the death of her father, but before the death of her mother, the life tenant under the will.

As we view the record four principal questions are presented for review: (1) Is Edward Palmer George, Sr., the owner of an one-half interest in and to the stocks described above? If Christine Parker George took a vested interest under the will of D.A. Parker, deceased, then it is agreed that Edward Palmer George, Sr., her husband, is the owner of one-half that interest under the laws of California, and the son Edward Palmer George, Jr., is the owner of the other one-half interest. (2) Should the ward's estate be removed to the state of California? (3) Should the Alabama guardian be removed from office? (4) Should the interest of Edward Palmer George, Jr., in the estate, consisting of corporate stocks be retained by the guardian as a legal investment? The decree of the trial court answered all of these questions in the negative.

The first question to be determined is whether Christine Parker George took a vested interest under the will of D.A. Parker, or whether her interest was either a contingent interest or a vested interest subject to be divested upon her death before the death of the life tenant. Section 6902, Code of 1923, Title 47, section 137, Code of 1940, is as follows: "No estate in lands can be created by way of contingent remainder; but every estate created by any will or conveyance, which might have taken effect as a contingent remainder, has the same properties and effect as an executory devise." Remainders are either vested or contingent. "A vested remainder is one limited to a certain person at a certain time, or upon the happening of a necessary event. A contingent remainder is one limited to an uncertain person, or upon an event which may or may not happen." Section 6905, Code of 1923, Title 47, section 140, Code of 1940.

"A remainder is said to be vested when the estate passes out of the grantor at the creation of the particular estate, and vests in the grantee during its continuance, or eo instanti that it determines, when a present interest passes to a certain and definite person, to be enjoyed in futuro, and is said to be contingent when the estate is limited either to a dubious and uncertain person, or upon the happening of a dubious or uncertain event,--uncertainty of the right of enjoyment, as distinguished from the uncertainty of possession." Phinizy v. Foster, 90 Ala. 262, 7 So. 836, 837; Wright v. City of Tuscaloosa, 236 Ala. 374, 182 So. 72.

The law favors the construction by which the estate is regarded as vested rather than contingent, or by which it will become vested at the earliest moment, and this being true, it is held: "The intent to postpone the vesting of an estate must be clear, and must not arise by mere inference or construction." Duncan v. De Yampert et al., 182 Ala. 528, 62 So. 673, 674; Pearce v. Pearce, 199 Ala. 491, 74 So. 952, 954.

But, as stated by Justice Clopton in the case of Phinizy v. Foster, supra: "The rule is generally applied when the intention of the testator is obscure and doubtful. It has no application when the intention to create contingent legacies or devises is clear. In respect to each of the rules the intention of the testator, as shown by the words employed by him, must control."

In the case of Wright v. City of Tuscaloosa, supra, Mr. Justice Knight, quoting from Watters v. First National Bank of Mobile, 233 Ala. 227, 171 So. 280, said [236 Ala. 374 182 So. 75]: "Much stress is laid upon the principle that the law...