Greenwood v. Warren

• Decision Date: 02 June 1898
• Citation: 23 So. 686,120 Ala. 71
• Parties: GREENWOOD v. WARREN ET AL.
• Court: Alabama Supreme Court

23 So. 686

120 Ala. 71

GREENWOOD v. WARREN ET AL.

Supreme Court of Alabama

June 2, 1898

Appeal from chancery court, Macon county; Jere N. Williams Chancellor.

Bill in equity by J. C. Greenwood against J. S. Warren and others. From a decree dismissing the bill, plaintiff appeals. Reversed.

W. W Pearson, for appellant.

Watts &amp Troy, for appellees.

BRICKELL C.J.

This is an appeal from a decree of the chancery court dismissing an original bill, and the questions involved are dependent on the sufficiency and proof of pleas interposed by the respondent Warren, one of the appellees. The bill which was filed by the appellant alleges: That Mrs. Greenwood, the mother of the appellant, died in July, 1891, leaving a last will and testament, which was duly admitted to probate in and by the court of probate of Macon county. That the appellee Warren, who was the son-in-law of the deceased, was nominated executor without bond of the will, and duly qualified as such, and took charge of the estate in 1891, soon after the probate of the will. That he had never made a settlement of his administration, but that proceedings for a settlement were then pending in the probate court; and that appellant was one of the legatees under said will. That the said Warren and his family were living with the deceased at the time of her death, and had so lived with her for a number of years and that for more than 20 years before the death of the testatrix he had had the use of the lands and home, and had paid nothing therefor; and that, although he had agreed to provide for and take care of the said deceased during her life in consideration of the use of her home and lands, he took from her a mortgage on all of her lands, in February, 1890, to secure an alleged debt of $1,718, with interest from 14th February, 1890. That appellant and the other children of the deceased, who were intimate with her, and who had constantly discussed her business affairs with her, and who saw her every week, never heard of this mortgage until after her death, when, though it had been duly recorded, its existence was first disclosed to them by said Warren, who said, however, he would not enforce it, unless he was troubled by the heirs in his administration of the estate. That the deceased had ample means of her own to take care of herself all the time. That besides her real estate, constituting, with her home place and another tract, more than 600 acres, she had received by inheritance, some years prior to her death, large sums of money which she partially distributed to her children; and that she had on hand at her death five or six hundred dollars in money. That at her death the deceased was 74 years of age, and for a number of years prior thereto she had been suffering from disease and pain, and for relief therefrom had used morphine and whisky, supplied to her by said Warren, to such an extent as to destroy in a great measure her mind, and that she was incapable, by reason of such mental weakness, of making a valid contract at the date of said mortgage; and that the said Warren, being the son-in-law of the said deceased, and in the house with her, exerted undue influence over the testatrix, to obtain said mortgage. That said Warren was asked by appellant for a statement of the items making up the alleged debt secured by the mortgage, and that he refused to furnish the same and still refuses to do so. And that soon after the said Warren had qualified as executor of the will of the deceased, and while so acting, he had sold the lands conveyed by said mortgage under the power contained in the instrument, and had bought at his own sale, merely bidding the amount of the alleged debt, which was an inadequate price for the lands. A copy of the mortgage is attached as an exhibit to the bill, and it conveys all the lands of the deceased mentioned in her will. The prayer of the bill is that said mortgage be declared fraudulent, that the foreclosure sale be set aside and vacated, and that the settlement of the administration of the estate be removed from the court of probate into the court of chancery. The appellee filed a demurrer to the bill, assigning numerous causes, which was overruled. He then filed five pleas, two of which alleged the want of necessary parties to the bill, which was obviated by the introduction of these parties by amendment. The remaining pleas set up the same matter of defense,-the pendency of the proceedings in the court of probate for a final settlement, and the due prosecution of these proceedings to a final settlement, and decree thereon rendered on the 18th day of July, 1893. These latter pleas were sustained by the chancellor, and it is from the decree sustaining them that the appeal is taken.

It appears that the bill in this case was sent to the register on the 13th July, 1893, and was received and marked "Filed" by him on the 14th, but that no summons was issued until August after the said final settlement. The delay in issuing the summons arose from the fact that the register had been requested by the attorney sending the bill by mail to have copied and attached as an exhibit the mortgage mentioned in the bill, which for some cause...