Goodwyn v. Cassels

• Decision Date: 11 May 1922
• Docket Number: 3 Div. 564.
• Citation: 207 Ala. 482,93 So. 405
• Parties: GOODWYN v. CASSELS ET AL.
• Court: Alabama Supreme Court

93 So. 405

207 Ala. 482

GOODWYN v. CASSELS ET AL.

3 Div. 564.

Supreme Court of Alabama

May 11, 1922

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

Bill by S. J. Cassels and James M. Rogers, as trustees under the will of Thomas Sloan Young, against the heirs of said Young, for the construction of will. From a decree declaring power in said trustees to make title to property conveyed to them as such, the guardian ad litem appeals. Affirmed.

The common-law rule against perpetuities applies as to bequests of personal property.

The bill makes respondents "the widow and all the children and grandchildren of said Thomas Sloan Young by his said widow," alleging that all except the grandchildren therein named are over the age of 21 years. It is alleged that Thomas Sloan Young died leaving a last will and testament, duly probated.

Paragraphs 3 and 4 of the bill read:

"That plaintiffs duly qualified as executors of said last will and testament, and accepted the trust imposed by said will and have been since administering the said trust. That under and by virtue of the provisions of said will, and the powers imposed them thereby, they did, about, to wit October 30, 1917, purchase from Annie A. Roquemore and C. H.

Roquemore, her husband, a vacant lot situated in the town of Cloverdale, in the county of Montgomery, and state of Alabama, at and for the sum of $3,350, a copy of the deed conveying the said property to plaintiffs being hereto attached marked Exhibit B, and made a part hereof, with leave of reference thereto as often as may be necessary. That the lot conveyed by said deed is described as follows, to wit: [Proceeding with a description of the property.]"

"That, as is stated on the face of the said deed, plaintiffs purchased the said lot anticipating that it would be used to build a residence thereon, the said residence, when completed, to be used as a home for Cora C. Young, the wife of the said testator, Thomas Sloan Young, and their children, pursuant to the authority given plaintiffs by the terms of said last will and testament.

"(4) That since the purchase of said lot plaintiffs, after consulting with the said Cora C. Young, and the children of said Cora C. Young and Thomas Sloan Young, concluded not to construct the said residence, and determined to sell and dispose of the said lot, and did thereafter enter into an agreement to sell the same, and, upon investigation of the title to the lot made by the attorneys representing the proposed purchaser, said attorneys expressed doubt as to the power of plaintiffs to convey a good and valid title to the property, and declining to approve the title unless the authority and power of plaintiffs to convey a good title was determined by a court of competent jurisdiction; that, in order to have such determination made, it becomes necessary that the will of said T. Sloan Young be construed in connection with the deed obtained by plaintiffs from Annie A. Roquemore and C. H. Roquemore, her husband, so that the power and authority to make a valid conveyance of the said lot to the proposed purchaser can be judicially ascertained and determined."

The prayer is for a construction of the will to the end of determining the power of the trustees to sell and convey the lot in question.

Pertinent parts of the will exhibited with the complaint read as follows:

"Item I. ***

"2. It is my will and desire that said trustees shall immediately after my decease take possession of all my said property and estate and convert the same into cash. They shall then proceed as rapidly as practicable to loan the said estate on real estate mortgages in the South preferably improved city real estate, and in no case shall the loan exceed sixty per cent. of the value of the real estate loaned on. I prefer that they do not buy any real estate except a home for my wife and children living together. For the purpose of this trust said trustees are hereby authorized and empowered to sell any of my property either at public or private sale and on such terms as they may think best without applying to any court for authority to make such sale, and to the reinvestment of such proceeds the purchaser shall not be bound to look. No part of my estate shall be disposed of by the said trustees except for the purpose of reinvestment.

"3. It is my will and desire that during the natural life of my beloved wife Cora C. Young, if she should not remarry, or until her marriage if she should remarry, said trustees shall apply all of the net interest and income, or so much thereof as may be necessary, to the support and maintenance of my said wife, and the support and maintenance and education of her child or children by me begotten, and at her death or remarriage the said trustees shall apply all of the net interest or income, or so much thereof as may be necessary, to the support, maintenance and education of her child or children by me begotten, and when any such child or children shall have arrived at the age of twenty-one years (21) it shall rest in the sound discretion of said trustees whether he, she or they shall be supported, maintained or educated from such interest and income. The descendants of any such child who may be deceased shall not be entitled to any portion of such interest and income. And should there be a surplus from such interest and income any year, said trustees shall invest the same as aforesaid for the benefit of my said wife and children and shall have the same powers with reference to said surplus as with reference to said original estate. At the division and distribution of my estate as hereinafter provided the said surplus shall be considered a part of my said estate hereby devised and bequeathed.

"4. It is my will and desire that after the death or remarriage of my beloved wife and the arrival of my youngest child at the age of twenty-five (25) years, and not sooner, all of my estate including such as may be the result of reinvestment by said trustees shall vest in my child or children, share and share alike, the children of my deceased child taking the share their parent would take if living at that time.

*********

"Item III. I hereby nominate, constitute and appoint my said friends Samuel Jones Cassels and James M. Rogers, executors of this my last will and testament, and hereby relieve the said executors from the necessity of filing any inventory or appraisement or of filing any annual final or other returns to any court or other authority, except only that this will shall be duly probated according to law. Any successors to the said executors, trustees and guardians shall give such bonds and make such settlements as may be required by law.

"Item IV. I hereby direct that in the event of the death or resignation of either or both of my said friends Samuel Jones Cassels or

James M. Rogers, a court of competent jurisdiction shall appoint a successor or successors to serve as executors, trustees and guardians to take the place of either or both that may have died or resigned it being contemplated by me that there shall be such two executors, trustees and guardians."

The adult respondents filed written consent for a decree empowering the trustees to convey the property herein involved. The guardian ad litem, appearing for the minor grandchildren, filed demurrers to the bill, taking the points that by neither the will nor the deed were the trustees empowered to sell, and that, under the terms of the will, the minor respondents have a contingent remainder interest in the lot which cannot be defeated by a sale by the trustees.

Tyler Goodwyn, of Montgomery, for appellant.

Steiner, Crum & Weil, of Montgomery, for appellee.

THOMAS J.

Cardinal rules for the construction of wills need not be repeated. Smaw v. Young, 109 Ala. 528, 20 So. 370; Duncan v. De Yampert, 182 Ala. 528, 62 So. 673; Ralls v. Johnson, 200 Ala. 178, 75 So. 926; Gunter v. Townsend, 202 Ala. 160, 79 So. 644; Jemison v. Brasher, 202 Ala. 578, 81 So. 80; Lyons v. Bradley, 168 Ala. 505, 53 So. 244; Crawford v. Carlisle, 206 Ala. 379, 89 So. 565.

Generally speaking, words employed in a will are of two classes, peremptory or precatory; of direct and positive terms, as distinguished from entreaty, request, desire, wish, or recommendation. Within the latter class fall these words of Mr. Young's will:

"I prefer that they [trustees] do not buy any real estate,"

-and in the former are the words:

"Said trustees shall immediately after my decease take possession of all my said property and estate and convert the same into cash. *** Said trustees are hereby authorized and empowered to sell any of my property either at public or private sale *** and to the reinvestment of such proceeds the purchaser shall not be bound to look. No part of my estate shall be disposed of by the said trustees except for the purpose of reinvestment."

It should be stated that testator evinced no intent to create a trust "for the purpose of accumulation only" (22 Am. & Eng. Encyc. of Law [2d Ed.] p. 727, § VIII; Code, 1907, § 3410; Pearce v. Pearce, 199 Ala. 491, 74 So. 952; Campbell v. Weakley, 121 Ala. 64, 25 So. 694), but a trust for the objects and subjects of testator's bounty.

The rule of sections 3410, 3417, of the Code has no application to the title to the lot in question or is alienation by said trustees, since the purchase price paid by said trustees after testator's death was personal property at the date of the death of testator; wills operating, not from the date of execution, but that of the death of the testator ( Caldwell v. Caldwell, 204 Ala. 161, 85 So. 493; Crawford v. Carlisle, supra; Gray's Perpetuities, § 231; 5 M....