Glennon v. Harris

• Decision Date: 16 January 1907
• Citation: 42 So. 1003,149 Ala. 236
• Parties: GLENNON v. HARRIS.
• Court: Alabama Supreme Court

42 So. 1003

149 Ala. 236

GLENNON v. HARRIS.

Supreme Court of Alabama

January 16, 1907

Appeal from Circuit Court, Mobile County; Samuel B. Browne, Judge.

Action by Mary Harris against James K. Glennon. Judgment for plaintiff, and defendant appeals. Affirmed.

Gaillard & Mahorner, for appellant.

L. H. &amp E. W. Faith, for appellee.

DOWDELL J.

The principal question and chief contention in the case, and the one on which the cause may be finally determined, is based on the plea of the statute of limitations of six years. The complaint contained the common counts, embracing the count for money had and received for plaintiff's use and benefit.

The undisputed facts show that the defendant, appellant here, as executor of the last will and testament of Amelia Durand deceased, received and held in his hands $300, which was left as a legacy to the plaintiff, appellee here, by said Amelia Durand under her said last will. The defendant, James K Glennon, was nominated in said will as executor and without bond. He qualified as such executor and took possession of the assets of the estate. The plaintiff was an ignorant and illiterate colored woman and former servant in the family of testatrix. She knew that Mrs. Durand left a last will but did not know its contents. The defendant, Glennon, informed the plaintiff that the amount of the legacy left the plaintiff under the will was $200. The defendant paid plaintiff the $200 in installments of $10, for which he took receipts from plaintiff. In March, 1896, defendant made final settlement of his executorship in the probate court. The defendant testified that at the time of making final settlement of his executorship he sent for the plaintiff and informed her that he had paid her $200, all that was coming to her under the will, and that, as he had lost one of her receipts for $10 he wanted her to give him a receipt for the $200 paid, to file as his voucher on the settlement. The defendant further testified that he paid the $200 to the plaintiff in installments of $10 a month, and that he kept the legacy and paid it to the plaintiff in installments by the month at plaintiff's request. The defendant further testified that he made a mistake in informing the plaintiff that her legacy under the will was $200, instead of $300, and that under this erroneous impression of his as to the amount of the legacy, on the final settlement, he paid the remaining $100 over to the residuary legatee under the will. It is shown that the plaintiff did not learn that the legacy left her under the will was $300 until within a month or two before the commencement of this suit, when she made demand on the defendant for the balance of her legacy, the $100, and the defendant refused to pay the same.

If an express trust was created by the agreement of the defendant to retain the legacy and pay it over to the plaintiff in monthly installments of $10, then the statute of limitations would not begin to run against the demand until there was a clear disavowal of the trust by the trustee, and such disavowal brought to the knowledge of the cestui que trust. Here there was no such disavowal, but, on the contrary, a recognition of it until the defendant had paid over to the plaintiff $200 in installments, and the failure to pay over the remaining $100 was the result of the defendant's erroneous impression, as he claims, that the legacy was $200. The defendant's erroneous impression as to the amount of the legacy...