Graham v. De Yampert

• Decision Date: 09 April 1895
• Parties: GRAHAM ET AL. v. DE YAMPERT. DE YAMPERT v. GRAHAM ET AL.
• Court: Alabama Supreme Court

17 So. 355

106 Ala. 279

GRAHAM ET AL. v. DE YAMPERT.

DE YAMPERT v. GRAHAM ET AL.

Supreme Court of Alabama

April 9, 1895

Cross appeals from chancery court, Dallas county; W. H. Tayloe Chancellor.

Bill by Charles P. De Yampert against J. K. Graham and Chauncey Graham, executors of the will of M. Louise Kenan. From a decree construing the will and codicil thereto, both parties appeal.

Upon the final hearing of the cause, on pleadings and proof, the chancellor rendered the following decree: "(1) That the complainant is entitled to elect whether he will take under the will, in the pleadings mentioned, the sum of one thousand dollars in money, or one thousand dollars in stocks at their market value at the time of the death of the testatrix, as then belonged to her estate, and were not specifically bequeathed by her in her will, and have not been and are not now required to be sold to pay the debts of the testatrix, or for other purposes of said will. (2) That in the residuum of said estate, if any there be, complainant is entitled to share equally with the other legatees in said will who reside in the state of Alabama." From this decree there are cross appeals by the complainant and respondents respectively, and the said decree is assigned as error by each.

W. A Gunter, for plaintiff.

N. H. R. Dawson, for defendants.

McCLELLAN J.

The twelfth item in the will of M. Louise Kenan contains the following bequest: "I bequeath to Charles De Yampert the sum of one thousand dollars, either in stocks or money." It is shown that testatrix, at the time of making her will and at the time of her death, owned sundry stocks of variant market values. The legatee insists that he is entitled to money or stocks, at his election, and that, electing to take stocks, he is entitled to shares of the face of nominal value of $1,000, regardless of the market value thereof. This view is unsound. It seems clear to us that this legacy is not specific, but general and pecuniary. The legatee is not entitled to any specific stocks, but to $1,000, and this $1,000, but not more, he may take in money or in stocks of that value, not nominal, but real. The authorities are so clear to this conclusion that we deem it only necessary to cite some of them. 3 Pom. Eq. Jur. §§ 1130, 1132; 13 Am. & Eng. Enc. Law, p. 10 et seq.; Myers v. Myers, 33 Ala. 85; Harper v. Bibb, 47 Ala. 547; Gilmer v. Gilmer, 42 Ala. 9; Brown v. Grimes, 60 Ala. 647; Maybury v. Grady, 67 Ala. 147; Kelly v. Richardson, 100 Ala. 584, 13 So. 785.

In a codicil to Mrs. Kenan's will is this provision "Should there be a residue of my estate still remaining, let it be divided pro rata among the heirs resident in the state of Alabama." The evidence shows that the testatrix had no heirs resident in the state of Alabama. But the will refers to certain nephews and nieces of testatrix's husband, who reside in Alabama, as her nephews and nieces. ...