Hammond v. Bibb

• Decision Date: 20 May 1937
• Docket Number: 7 Div. 442
• Parties: HAMMOND v. BIBB et al.
• Court: Alabama Supreme Court

174 So. 634

234 Ala. 192

HAMMOND v. BIBB et al.

7 Div. 442

Supreme Court of Alabama

May 20, 1937

Appeal from Circuit Court, Calhoun County; R.B. Carr, Judge.

Bill in equity by E.E. Hammond, as executor of the will of Callie French Tomlinson, deceased, against John D. Bibb individually and as trustee under the will of L.H. Kaplan deceased, Kaplan Hospital, the City of Anniston, A.P. Agee Ellen Agee Foster, Caroll Agee Rowen, Mary Blackwell Wells J.V. Blackwell, H.B. Blackwell, Louise Blackwell, Julia Blackwell Patton, and Robert Kaplan, the latter of whom filed a bill in the form of an intervention. From a decree sustaining a demurrer to the bill, complainant appeals.

Affirmed.

Ross Blackmon, of Anniston, for appellant.

Mulkey & Mulkey, of Geneva, amici curiae.

Roy M. Woolf, of Anniston, for appellees.

FOSTER Justice.

This is a bill in equity, and is evidently supplementary to an administration, in that court, of the estate of L.H. Kaplan, deceased, who died testate. The purpose of the bill is to collect a certain annuity provided in the will for C.H. Tomlinson during his life. While he was dead when the bill was filed, the amount claimed was for annuities which had accrued at and before he died.

A construction of the will is necessary to determine the rights of complainant as sought in the bill. It is attached to the bill, and provides for the payment to Tomlinson of $50 per month during his life. It contains provision for a similar annuity to Robert Kaplan, son of testator, who, having been made a party defendant, has filed a bill in the form of an intervention in this suit but no question is here presented as to his rights.

In so far as shown by the bill and the express terms of the will, there were three pieces of real estate owned by testator. No others are mentioned, nor is other property mentioned, although there is some implication in the will that he owned other property. One piece of land was situated in Asia, and was specially bequeathed to his brother-in-law, there residing, and is not here considered of importance.

The other items of property specially mentioned are what we will refer to as lots 129 and 130 in Anniston, not intending here to describe them except for the purposes of this opinion. With respect to lot 129, he provided in paragraph 8 of his will that "in the event my son (that is Robert Kaplan) contracts a marriage with a jewess, I devise to his children (this lot). This property to be held in trust by my executor and trustees until my said son, Robert, shall have born unto him a child which shall attain the age of twenty-one years: upon his twenty-first birthday the said property is to be divided equally among all children of said Robert, who shall then be living."

In the ninth paragraph he devises lot No. 130 to his trustees for certain charitable trusts. See, State ex rel. v. Bibb (Ala.Sup.) 173 So. 74; National Jewish Hospital v. Coleman, 191 Ala. 150, 67 So. 699; Kaplan v. Coleman, 180 Ala. 267, 60 So. 885. In the tenth paragraph he "leaves in trust" for the same charities all the rest, residue, and remainder of his property.

In the eleventh paragraph he reiterates the trust, excluding the lot in Asia. In it also he directs his trustees to "pay said monthly sums above mentioned out of income of my property or buy annuities, as they may deem desirable. Until such time as my said son may have a child who reaches twenty-one years of age, and until the twenty-first year of its life, the money from the block South of Eighth Street, block 129, is to go to the general income fund of my estate, and to be applied to the purposes of my said will above outlined, just as the income from other portions of my property. The annuities above bequeathed are not to be charged on any specific portion of my estate, but on the whole thereof, except the said block 130, the income from which is to be used for the three charities aforementioned." And then it is provided that, if any devise fails, the remainder is to go to the same charities.

The bill first seeks to hold the trustee accountable for the rents collected from lot 129, and, in event there is not enough to pay the annuities, it seeks to subject the corpus of that lot. It alleges that respondents Agee and associates (named) have acquired the interest of two of the charities in said lot 129. It does not allege whether Robert married a Jewess or has a child. And the intervention of Robert does not give us a sidelight on that subject.

The court sustained demurrer of Agee and associates, and overruled demurrer of the trustee. The decree shows that the court was of the opinion that the bill has equity in so far as it seeks to require the trustee to account for the sums he has collected, but that the annuities are not a charge upon the corpus of lot 129.

Ground 18 of the demurrer of Agee and associates is that the bill does not show that Robert did not marry a Jewess, and has no child, and, from aught that appears, there is such a child who is a necessary party. It is urged that there is a presumption of a continuance of the single form of his life. The court will indulge presumptions in favor of complainant upon a general demurrer for want of equity, but not when a demurrer specially points out a failure of averment in some particular. If Robert married a Jewess, and has a child, that child is a necessary party. It is singular that neither the bill nor the intervention of Robert makes allegation in that respect.

A chancery court must have before it the owners of the entire title to property, legal and equitable, which is sought to be sold or subjected by its decree, and will not proceed without them. Silverstein v. First National Bank, 231 Ala. 565, 165 So. 827(5); Hodge v. Joy, 207 Ala. 198, 92 So. 171; Ex parte Wilkinson, 220 Ala. 529(20), 126 So. 102.

It cannot be said, therefore, that there is error in the decree sustaining the demurrer. But we think we should consider the merits of the controversy, so carefully argued in brief and at the bar. This we will proceed to do.

The question argued by appellant relates to a construction of the will so as to determine whether the corpus of lot 129 may be subjected to the legacy bequeathed to complainant to the extent that the income derived from the estate subject to pay it is not sufficient to that end. It is specified that lot 129 is to be held in trust until his "son Robert shall have born unto him a child which shall attain the age of twenty-one years," and until that time "the money from (it) is to go to the general income fund of my estate, and to be applied to the purposes of my said will above outlined just as the income from other portions of my property." Neither the bill nor the will shows that there was any other property which yielded an income. But the will provided that the trustees shall pay "said monthly sums above mentioned out of income of my property or buy annuities," and that the legacies above bequeathed are made a charge on the whole of his estate except lot 130. Does that indicate an intention to charge the corpus of lot 129, when construed in the light of the balance of the will?

Speaking with reference to debts, not legacies, our statute makes the realty of a decedent subject to their payment when the personalty is not sufficient. Section 5847. And such liability is not affected by a specific devise of the property. May v. Burns, 222 Ala. 68, 131 So. 232; Cater v. Howard, 230 Ala. 133, 159 So. 830; Kelly v. Richardson, 100 Ala. 584, 585, 13 So. 785.

But the property, both real and personal, not specially devised shall be exhausted before resort is made to that which is so devised. Morgan v. Watkins, 214 Ala. 671, 108 So. 561; Lightfoot v. Lightfoot's Ex'r, 27 Ala. 351.

"A specific legacy is a bequest of a particular article or specific part of the testator's estate, which is so described and distinguished from all other articles or parts of the same as to be capable of being identified." Kelly v. Richardson, 100 Ala. 584, 596, 13 So. 785, 790; May v. Burns, 222 Ala. 68, 131 So. 232; Willis v. Barrow, 218 Ala. 549, 119 So. 678.

A bequest of a certain sum of money is general, and not special. Kelly v. Richardson, supra; Lightfoot v. Lightfoot's Ex'r, supra.

The rule in respect to the payment of general legacies is different from that applicable to the payment of debts. It is said in Kelly v. Richardson, supra, 100 Ala. 584, at page 600, 13 So. 785, 792: "We know of no rule of law which authorizes the payment of one general legacy by the abatement of another general legacy or of a specific legacy." And the general rule is said to be that "in the absence of an...