Hall v. Mazzone
| Decision Date | 21 March 1986 |
| Citation | 486 So.2d 408 |
| Parties | Mary F. HALL, et al. v. Miriam Ellen Hall MAZZONE. 84-193. |
| Court | Alabama Supreme Court |
Thomas E. Bryant, Jr., of Bryant & McKnight, and Donald M. Briskman, Mobile, for appellants.
Thomas P. Ollinger, Jr., of Wilkins, Druhan & Ollinger, Mobile, and Lee, Barrett & Mullins, Tuscaloosa, for appellee.
The present lawsuit was filed by Miriam Ellen Hall Mazzone, the daughter of Jesse Carl Hall and residual beneficiary of his estate, against Jesse Carl Hall's mother, Bessie Newell Hall, and three siblings of Jesse Carl Hall, two of whom, Hines Newell Hall and Mary Florence Hall, are the co-executors of his estate. Plaintiff sued for an accounting, removal of the co-executors, damages for mismanagement of estate assets, and a determination of plaintiff's interest in land located in Baldwin County. The only issue raised by defendants in this appeal is whether the trial court erred in holding that plaintiff's interest in the property in question is not subject to the quarantine rights of plaintiff's grandmother, defendant Bessie Newell Hall.
Robert Hines Hall, the husband of Bessie Newell Hall, died intestate on April 15, 1949. There is a dispute concerning the location of his last residence. Defendants claim that shortly before his death Robert Hines Hall moved from a residence known as the " which was owned by a relative, and constructed a small house on a 540-acre tract of land which he owned in the Tensaw Flats area. This residence was known as the "Pace place." Plaintiff maintains that Robert Hines Hall lived at the D. Hall place at the time of his death.
There was evidence that after Robert Hines Hall's death his children agreed that all income generated by his property should go to their mother, Bessie Hewell Hall, for her maintenance and support; however, Bessie Newell Hall directed that her income go to her children so as to preserve her Social Security and Medicare benefits.
Jesse Carl Hall, a resident of Tuscaloosa, died on November 14, 1970, leaving a one-quarter interest in the Baldwin County property as an asset in his estate. In 1982, plaintiff initiated the present lawsuit. Defendants raised an affirmative defense based upon the quarantine rights of Bessie Newell Hall, Robert Hines Hall's widow. Evidence was presented both ore tenus and by deposition to the trial court without a jury. The trial court found that Robert Hines Hall did not reside at the Pace place at the time of his death, and, therefore, that his widow was not entitled to any income from, and held no interest in, the property in Baldwin County in which Jesse Carl Hall's estate held an undivided one-fourth interest. The order determining the issue of quarantine was made final under the provisions of Rule 54(b), A.R.Civ.P., and all other issues in the case were referred to a special master. However, the trial court suspended the special master's report while considering several post-trial motions and also ordered that the report be suspended during the time for taking an appeal and during the pendency of an appeal.
Defendants' motion for new trial or to alter, amend, or vacate the judgment on the basis of newly discovered evidence was denied. After filing a notice of appeal, defendants, pursuant to court order, filed a supersedeas bond in the amount of $46,705, that amount being ten percent of the value of plaintiff's undivided one-fourth interest in the property.
Defendants claim that the following statute, extant at Robert Hall's death, entitles Bessie Newell Hall to possession and income from the Baldwin County property at issue:
"The widow may retain possession of the dwelling house where her husband most usually resided next before his death, with the offices and buildings, appurtenant thereto, and the plantation connected therewith, until her dower is assigned her, free from the payment of rent."
Alabama Code of 1940, tit. 34, § 50. This is the so-called right of quarantine incidental to dower. Failure of the widow to reside on the land after the husband's death, as in the present case, does not result in the forfeiture of her quarantine rights. Smith v. Persons, 285 Ala. 48, 55, 228 So.2d 806, 812 (1968); Foy v. Wellborn, 112 Ala. 160, 165, 20 So. 604, 605 (1896). Furthermore, the three- and ten-year limitations on the right to have dower assigned, see Alabama Code of 1940, tit. 34, § 63, do not apply to a widow who retains possession under the right of quarantine. Williams v. Anthony, 219 Ala. 98, 99, 121 So. 89, 90 (1929).
However, the trial court held that the widow in this case was not entitled to any rights by virtue of this statute because the property in question was not "where her husband most usually resided next before his death." See Clark v. McWaters, 286 Ala. 563, 564, 243 So.2d 670, 671-72 (1970). It is this finding of the trial court that is challenged on appeal.
The parties have presented a preliminary question, however, regarding the standard by which this Court is to review the finding of the trial court. Where the trial court hears ore tenus evidence, its findings of fact based on that evidence will not be disturbed on appeal unless they are plainly and palpably wrong or manifestly unjust. Scarbrough v. Smith, 445 So.2d 553, 555 (Ala.1984). This Court reviews de novo findings of the trial court based upon evidence taken by deposition. Muscogee Construction Co. v. Peoples Bank & Trust Co., 286 Ala. 258, 261, 238 So.2d 883, 886 (1970). Where evidence on an issue is presented both orally and by deposition, the ore tenus rule affords the trial court's finding a presumption of correctness. First Alabama Bank of Montgomery v. Martin, 425 So.2d 415 (Ala.1982); Jones v. Moore, 295 Ala. 31, 36, 322 So.2d 682, 686 (1975); Blackwell v. Sewall, 280 Ala. 359, 367, 194 So.2d 519, 526-27 (1967); St. Paul Fire & Marine Ins. Co. v. Johnson, 259 Ala. 627, 628, 67 So.2d 896, 897 (1953); Taylor v. Burgett, 207 Ala. 54, 56, 91 So. 786, 787-88 (1921).
In this case, the trial court took evidence on the issue of the last residence of Robert Hines Hall that was presented both orally and by deposition. The problem is that only one witness, Mary Florence Hall, testified orally before the trial court on this issue. Her testimony was that her father lived at the Pace place at the time of his death, an assertion contrary to the trial court's finding. Defendants argue that the ore tenus rule should not apply where the trial court's finding is contrary to all of the oral testimony. We do not agree.
The ore tenus rule is grounded upon the principle that when the trial court hears oral testimony it has an opportunity to evaluate the demeanor and credibility of witnesses. In this case, the trial court observed one witness testify concerning this issue and made a determination of credibility. The fact that this determination was negative does not entitle us to ignore it. The fact remains that the trial court, having heard the testimony of one witness, is in a better position to resolve conflicting evidence than are we who must rely solely on written documents. Therefore, we accord the trial court's finding a presumption of accuracy, and we examine the record only to determine if that finding was clearly erroneous.
Mary Florence Hall testified that her father lived at the Pace place immediately prior to his death and described the house. Hines Newell Hall, albeit by deposition, also maintained that his father resided at Pace place at the time of his death, but stated that it was not generally known in the community that his father had moved to the Tensaw Flats area because his father did not want it known. Hines Newell Hall also deposed that his parents took only what they needed to the Pace place and left some of their furniture at the D. Hall place.
Similarly, Young Charles Earle testified by deposition that the Hall family vacated the D. Hall place before the death of Robert Hines Hall. Earle, who was 12 or 13 years old at the time of Robert Hines Hall's death in 1949, stated that he did not know where the Hall family lived after that and admitted that his knowledge of this event was based on conversations he overheard between members of the Tensaw community. Finally, Charles Phillips testified that Robert Hines Hall moved from the D. Hall place to a "shotgun or cottage fashion home ... up on Holly Creek." Phillips said he saw Robert Hines Hall walking on the highway near this cottage "lots of times" before his death.
Several witnesses deposed that they never knew Robert Hines Hall to live in the Tensaw Flats area. Carol Slaughter Griffin, who visited the Hall family at the D. Hall place in the summer of 1945 or 1946 and did not recall visiting again before Robert Hines Hall's death in 1949, stated that she did not recall Robert Hines Hall living in the Tensaw Flats area. Likewise, Gladen Scott Byrne testified that to his knowledge the Hall family did not move from the D. Hall place prior to 1949. Charles Norman also stated that he did not remember Robert Hines Hall living in the Tensaw Flats area and further stated that he never knew any white people to live in the Flats.
Helen Slaughter testified as follows concerning this issue:
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