Hawkins v. Tanner

• Decision Date: 17 December 1942
• Docket Number: 6 Div. 956.
• Citation: 243 Ala. 641,11 So.2d 351
• Parties: HAWKINS et al. v. TANNER.
• Court: Alabama Supreme Court

11 So.2d 351

243 Ala. 641

HAWKINS et al. v. TANNER.

6 Div. 956.

Supreme Court of Alabama

December 17, 1942

Rehearing Denied Jan. 28, 1943.

Harsh, Harsh & Hare, of Birmingham, for appellants.

Wm. S. Pritchard and Victor H. Smith, both of Birmingham, for appellee.

LIVINGSTON Justice.

The appeal is from a decree of the Circuit Court of Jefferson County, Alabama, in Equity, overruling demurrers to the bill of complaint as amended of Aline Cole Tanner. Complainant in the court below, appellee here, is a daughter of Margaret Julia Cole who died testate in Jefferson County on or about October 9, 1932, and a granddaughter of Tolbert F. Cheek who died testate in Jefferson County on or about January 2, 1920. The subject matter of the suit is two lots or parcels of land located in Birmingham, Alabama, and described as follows:

"W 1/2 of lot 5, Block 86, according to the original survey of the City of Birmingham, as made by the Elyton Land Company and also

"S 1/2 of lot 7, Block 660, according to the original survey of the City of Birmingham as made by the Elyton Land Company said lot fronting 90 feet on the North side of 12th Avenue North, and running back northwardly of uniform width 120 feet."

Respondents in the court below, appellants here, are the devisees, or descendants or transferees of the devisees under the will of Tolbert F. Cheek, deceased, and the surviving trustees under a certain instrument of trust dated January 31, 1921, and the trustees under the will of Margaret Julia Cole, deceased.

The bill prays for a construction of the will of Tolbert F. Cheek, deceased, as the same relates to the lands, which are the subject matter of this suit, fixing the right, title and interest of each of the devisees therein named as of the date of the death of said decedent, and as of the date of the execution of the instrument of trust dated January 31, 1921, and as of the date of the death of decedent's wife, Mary J. Cheek, who is alleged to have died during the year 1927; a determination of the validity and legal effect of the instrument of trust dated January 31, 1921, and, in the event the court determines said instrument to be valid and legal, determine and fix the rights and interest of each of the beneficiaries therein named in and to the property which is the subject matter of this suit, under the terms and provisions of said trust instrument: determine and fix the rights and interests of the present surviving trustees in and to such lands, if any they have; and that the court conclude the administration of said trust, cause the lands to be sold and the proceeds distributed among complainant and respondents entitled thereto as beneficiaries of said trust estate. The bill further prays that in the event the court determines that the present owners of the lands, the subject matter of this suit, are joint owners and tenants in common thereof, then in that event fix and determine the interest of each in and to said lands, and equitably divide the same in kind, or in the event they cannot be so divided they be sold for division among the joint owners and tenants in common; and for general relief. The will of Tolbert F. Cheek, the will of Margaret Julia Cole and the deed of trust dated January 31, 1921, are attached to and made a part of the bill.

Demurrers were interposed to the bill as a whole and to each and every aspect thereof, separately and severally, and with precision, that is to say, by addressing certain designated grounds of demurrer to that aspect of the bill by which complainant seeks a construction of the will of Tolbert F. Cheek, deceased: That aspect of the bill by which complainant seeks to ascertain the validity and legal effect of the deed of trust dated January 31, 1921, and to fix and determine the rights, title and interests of the parties under said deed, and the enforcement of the trust; that aspect of the bill by which complainant seeks a division in kind or a sale of the lands for division; that aspect of the bill by which complainant seeks attorneys' fees. The demurrers were sustained generally.

The appellee filed an amendment to the bill, the introductory recitals of which are as follows:

"Comes now the complainant, and, by leave of court first had and obtained, amends her complaint as follows: "By adding thereto the following additional paragraph to be known as paragraph number 4 1/2, and to be inserted in the bill immediately preceding the end of paragraph 4 as originally filed, and immediately preceding paragraph 5 as originally filed, said additional paragraph being in words and figures as follows:"

To the bill as amended respondents refiled the demurrer previously filed, and added thereto additional grounds. Demurrers were overruled generally, hence this appeal.

Appellants insist that the amendment, paragraph 4 1/2, touches only that aspect of the bill charging the trustees named in the trust instrument of January 31, 1921, with a failure to perform their duties as such trustee, or an improper performance thereof, and, as a consequence, other aspects of the bill, to which demurrers had been sustained, are not aided by the amendment, and should be regarded as having been stricken.

The argument overlooks the proper consideration of the structure of the bill as amended. An amended bill or an amendment to a bill is considered as a part of the original pleading and as constituting with it one record. It is only a continuation of the original bill. The real record is the original bill with the amendment, and the two amalgamated constitute the case of complainant. In other words, the court no longer looks into the original bill to ascertain the character of the relief sought, but to the new record, made up of the original and the amended bill, and deals exclusively with that. American Freehold Land Mortgage Co. v. Sewell, 92 Ala. 163, 9 So. 143, 13 L.R.A. 299; 19 Amer.Jur. 340, page 238. Amending the bill properly means no more than adding to or changing it within its original structure. Middlebrooks v. Moore-Handley, Hardware Co., 209 Ala. 526, 96 So. 410.

The amendment here considered is not specifically directed to any one aspect of the bill, but to the bill as a whole, although the averments contained therein may aid only one aspect of the bill. Moreover, it was so considered by the trial court, and by appellants, as evidenced by their action in refiling the demurrers to the bill as amended as a whole, and to each and every aspect thereof, separately and severally, and with precision.

The main purpose of complainant's suit is a determination of her right, title and interest in and to the two lots mentioned, and a separation of her interest from the interest of others. This result is sought through two channels, first, a determination of the validity of the trust deed, and if found to be valid its interpretation and the enforcement of its provisions: second, if the trust deed is found to be invalid, a division in kind or a sale for division among joint owners or tenants in common. Other so-called aspects are but matters touching the results sought.

As already stated, Tolbert F. Cheek died testate on or about January 2, 1920. In his will, which is attached to and made a part of the bill as amended, he devised to his wife, Mary J. Cheek a life estate in the lots here involved. Other provisions of his will, here pertinent, are as follows:

"Seventh: I give and bequeath to all my children, Frances Ella Hawkins, Margaret Julia Cole, Amos B. Cheek, Pendleton E. Cheek, Mariana Hawkins, deceased, (her part to be divided equally between her two boys, Hawthorn and Williamson) Lou Alma Hobson, Simmons L. Cheek, Willie Virginia Jefferson, all the residue of my property of whatever kind and description, real, personal and mixed, of which I shall die seized and possessed, or to which I shall be entitled at the time of my decease (which includes the lots here involved), and it shall be divided equally among all my children, share and share alike, to be determined by all of them; but if they cannot agree, then they may call in three disinterested men who are judges of value, to assist them in making a fair division. I would suggest G.R. Harsh and W.B. Leedy, and they select the third. * * *

"Tenth: I will that if any of my children die without living children, then all property acquired by them from my estate shall revert back to my estate from such as have no living issue, and be divided as heretofore directed in this will."

Margaret Julia Cole, a daughter of Tolbert F. Cheek, and one of the devisees named in item seven of his will, died testate on or about October 9, 1932. The here pertinent provisions of her will are as follows: "It is my will that all the rest and residue of my property of whatsoever kind and description (including the lots here involved) go to my three children, Aline Cole Tanner, Charles Thurman Cole and Willie Cole Tarwater, share and share alike, or if any one or more of said children shall have passed at the time of the qualifications of my executors, then that the third of the rest and residue of my estate which would have gone to said deceased child or children shall go to and be owned by the lineal descendants of said deceased child or children of mine, said descendants taking and holding per stirpes."

In the case of Upshaw v. Eubank, 227 Ala. 653, 655, 151 So 837, 839, it was held, speaking through Mr. Justice Brown: "By the great preponderance of authority, the power of courts of equity to construe wills is incidental to their jurisdiction to declare and enforce trusts, or the protection of property...