Grace v. Birmingham Trust & Sav. Co., 6 Div. 136

• Decision Date: 03 April 1952
• Docket Number: 6 Div. 136
• Citation: 59 So.2d 595,257 Ala. 507
• Court: Alabama Supreme Court
• Parties: GRACE v. BIRMINGHAM TRUST & SAVINGS CO. et al.

Page 595

59 So.2d 595

257 Ala. 507

GRACE v. BIRMINGHAM TRUST & SAVINGS CO. et al.

6 Div. 136.

Supreme Court of Alabama.

April 3, 1952.

Rehearing Denied June 26, 1952.

M. B. Grace, Birmingham, for appellant.

Griffin Lamkin, Birmingham, for appellees Wilkinson and Casey.

LAWSON, Justice.

On February 1, 1947, a bill was filed in the circuit court of Jefferson County, in equity, wherein Mrs. Eleanor Wilkinson Casey, Mrs. Hettie Ann Wilkinson, and M. B. Grace were the complainants and the Birmingham Trust and Savings Company, a corporation, as trustee for Ida K. Wood, and many other parties were respondents. M. B. Grace filed the bill as attorney for the complainants.

The theory of the bill, as we understand it, is: Mrs. Casey and Mrs. Wilkinson are the owners of certain real estate in Jefferson County, which we will refer to hereafter on occasion as the suit property, and M. B. Grace has an attorney's lien thereon. The respondents, it is alleged, hold liens against the interest which one Carl W. Wilkinson had in the suit property before he attempted to convey his interest therein to his mother, Mrs. Hettie Ann Wilkinson, one of the complainants.

The prayer of the bill in pertinent part is as follows:

'(a) That commissioners be appointed and directed to carve out of the said real estate the interest of Carl W. Wilkinson and that it be sold to satisfy said liens and the proceeds arising from the sale thereof be apportioned among the lien holders in proportion to their respective liens and the title to said real estate be cleared as to said liens.

'(b) That a decree be entered and the said real estate sold for division of the proceeds arising from the sale thereof among the joint owners and those who may have an interest in said real estate and the commissioner directed as to disbursement of the proceeds arising from the sale thereof.

'(c) That the interest of M. B. Grace in the interest of the respective joint owners be determined and the commissioner directed to deduct the amount out of the interest of the joint owners and pay same to M. B. Grace and upon so doing that the attorneys lien be cancelled as to the title to said real estate.

'(d) That the commissioner deduct out of the proceeds arising from the sale of said property the amount of cost accrued in the proceeding in the probate court and pay same into the said probate court.

'If the relief herein prayed for is not just, proper and equitable, then complainants pray for such other, further and general relief as they may be entitled to receive.'

We will hereafter summarize the averments of the bill as we understand it. In doing so we must follow the averments of the bill as shown by the record. We cannot consider statements in brief not supported by the record. Garrett v. State ex rel. Mathews, 235 Ala. 457, 179 So. 636; MacMahon v. City of Mobile, 253 Ala. 436, 44 So.2d 570.

According to the averments of the bill the suit property was owned by Robert Milton Wilkinson, who died intestate on October 3, 1939, leaving no children. He was survived by his widow, Mrs. Eleanor Wilkinson; his mother, Mrs. Hettie Ann Wilkinson; and a sister and several brothers, one of whom we think the bill sufficiently shows was Carl W. Wilkinson. The widow, Mrs. Eleanor Wilkinson, subsequently married a man by the name of Casey.

The bill then avers that under the provisions of § 1, Title 16, Code 1940, upon the death of Robert Milton Wilkinson, the mother, Mrs. Hettie Ann Wilkinson, inherited an undivided one-half interest in the suit property and the sister and brothers inherited the other one-half undivided interest, all subject to the dower rights of the widow, the complainant, Mrs. Eleanor Wilkinson Casey.

The bill then avers:

'* * * that on, to-wit, September 28, 1941 the brothers and sisters of the deceased executed a deed conveying their one-half undivided interest in said real estate to the mother of deceased, Mrs. Hettie Ann Wilkinson, and the mother of deceased, Hettie Ann Wilkinson by deed, conveyed to Eleanor Wilkinson Casey a one-third undivided interest in said real estate, in lieu of her dower interest or right in and to said real estate, which was accepted by Eleanor Wilkinson Casey in lieu of her dower interest in said real estate; that said real estate could not be equitably divided between the joint owners thereof, and it being to the best interest of the joint owners thereof that the said real estate be sold under a decree of the court and the proceeds arising from such sale thereof be divided between the joint owners, as follows: one-third to Mrs. Eleanor Wilkinson Casey and two-thirds to Mrs. Hettie Ann Wilkinson.

'The parties being financially unable to employ counsel to represent them in a suit for partition of the said real estate, employed M. B. Grace, an attorney, to file suit in the probate court of Jefferson County, Alabama to have the said real estate sold for a division of the proceeds arising from the sale thereof between the joint owners, and each of the said parties made and executed a contract with M. B. Grace wherein it was agreed and stipulated that M. B. Grace shall have a one-third interest in the interest of each of said parties in said land or the proceeds arising from the sale of it, as his attorney's fee for representing the parties in said proceeding; * * *.' (Emphasis supplied.)

Attached to the bill and marked as exhibits thereto are the contracts of employment referred to in the bill. They read as follows:

'Exhibit 'A'.

'State of Alabama

Jefferson County

'Be It Known By All Men, That I, Mrs. Hettie Ann Wilkinson, have this day employed M. B. Grace, an attorney, to file and prosecute suit or petition in the probate court of Jefferson County, Alabama in my name, to have set aside to me my statutory interest out of the following land which was the property of my deceased son, Robert Milton Wilkinson, to-wit:

'Lots 5, 6, 7, and 15 according to the map and plat made by the commissioners and denominated 'Wilkinson Addition to New Merkle' a copy of said map and plat is recorded in map book 24, on page 23 of map books in the office of the Judge of Probate of Jefferson County, Alabama, and being situated in the Northeast quarter of Section 22, Township 18, Range 2 West, Jefferson County, Alabama.

'It is understood and agreed that I, Mrs. Hettie Ann Wilkinson, mother of Robert Milton Wilkinson, deceased, is financially unable to employ counsel and pay a cash Attorney's fee for the legal services to be rendered; and it is further agreed that M. B. Grace has agreed to accept employment, to file suit in my name and do all the work necessary to be done, and to represent the party herein in said matter upon the following terms and conditions: That he will file suit and do all the work necessary in said matter for an interest in said real estate which may be set apart to Mrs. Hettie Ann Wilkinson, mother of Robert Milton Wilkinson, by the probate court of Jefferson County, Alabama which is equal to a one-third of said land or the value of same, and when said decree has been entered I agree to execute a deed conveying to M. B. Grace an amount or interest in said land which is equal to a one-third of said land as his attorney's fee in said cause, and he, the said M. B. Grace, agrees to execute deed conveying all right, interest and title which he may have in or to said land to Mrs. Hettie Ann Wilkinson, releasing any and all attorney's lien in or to said real estate.

'The said M. B. Grace shall have authority to sign all papers, swear to all papers, as my attorney, in all things and matters connected with said land as herein described, and to do all things necessary in the prosecution of said suit.

'Witness my signature this 20 day of October 1942.

'Mrs. Hettie Ann Wilkinson.'

'Exhibit 'B'.

'State of Alabama

Jefferson County

'Be It Known By All Men, That I have this day employed M. B. Grace, an attorney, to file and prosecute a suit or petition in the probate court of Jefferson County, Alabama, in my name, to have my dower interest set aside to me out of the following described land which belonged to my deceased husband, Robert Milton Wilkinson, to-wit:

'Lots 5, 6, 7, and 15 according to the map and plat made by the commissioners and denominated by them 'Wilkinson Addition to New Merkle' a copy of said map and plat is recorded in Map Book 24, on page 23 of said Map Book in the office of the Judge of Probate of Jefferson County, Alabama and being situated in the Northeast quarter of Section 22, Township 18, Range 2 West, situated in Jefferson County, Alabama.

'It is understood and agreed that I, the widow of Robert Milton Wilkinson, deceased, am financially unable to pay M. B. Grace a fee certain, in cash, for representing me in said cause, and it is further agreed that M. B. Grace will accept employment, and will file petition and do all legal work necessary, and represent the said party in said matter on the following terms and conditions: that he shall receive for his services in said matter, an amount which is equal to a one-third (1/3) interest in said land, and I agree that when said suit is settled, I will execute a deed, in my name, conveying to M. B. Grace a one-third interest in said land, and will execute to me a deed conveying any and all interest he may have in two-thirds of said land, releasing any and all attorney's lien to said land.

'The said M. B. Grace shall have authority to sign all papers, swear to all papers, as my attorney, in all things and matters connected with said land as herein described, and do all things necessary in the prosecution of said suit.

'Witness my signature, this 14 day of Oct. 1942.

Mrs. Eleanor Wilkinson Casey.'

The bill further avers:

'* * * that the said proceeding [sale for division] was filed in the probate court of Jefferson County, Alabama and decree was made and entered for sale of the said real estate; at the time the decree was made and entered, the market value of real estate...