Henderson v. Henderson

• Citation: 97 So. 353,210 Ala. 73
• Decision Date: 24 May 1923
• Docket Number: 4 Div. 21.
• Parties: HENDERSON ET AL. v. HENDERSON ET AL.
• Court: Alabama Supreme Court

97 So. 353

210 Ala. 73

HENDERSON ET AL. v. HENDERSON ET AL.

4 Div. 21.

Supreme Court of Alabama

May 24, 1923

Rehearing Denied June 28, 1923.

Appeal from Circuit Court, Pike County; Arthur B. Foster, Judge.

Bill by Sallie E. Henderson, Gussie Henderson Jones, Fred W Henderson, Fox Henderson, Jr., and Frank L. Jones against Jake Henderson, Mary Henderson, and Dorothy Henderson, a minor, for removal of the administration of the estate of Fox Henderson, deceased, from the probate court to the circuit court in equity and for the construction of the will of said Fox Henderson. From the decree, defendants Jake Henderson and Dorothy Henderson, by her guardian ad litem, appeal. Corrected and affirmed in part, reversed in part, and remanded.

It is shown by the bill that Fox Henderson died June 13, 1918 possessed of considerable property; that on January 1, 1917 he prepared and had executed what purported to be articles of partnership between himself, his wife, and his children; that he and his wife executed a deed conveying all his property to the partnership so created, and himself executed an instrument transferring a large number of shares of the capital stock of various corporations to the partnership. It is further shown that at his death Fox Henderson left a last will, dated October 23, 1912, which has been duly probated.

The articles of partnership exhibited are in substance as follows:

"Troy, Pike County, Alabama,

"Monday, January 1, 1917.

"Know all men by these presents, that I, Fox Henderson, this day desire to form a new partnership in business, and have all and each of my children and my wife interested with me in said firm, which shall be known as Fox Henderson & Sons, and include in said partnership my wife and all my children and myself. Those interested in said Fox Henderson & Sons: Fox Henderson (myself) shall own a one-sixth (1/6) interest; Fox Henderson, Jr., shall own a one-sixth (1/6) interest; Sallie E. Henderson (my wife) shall own a one-sixth (1/6) interest; Gussie Henderson Jones shall own a one-sixth (1/6) interest; Fred W. Henderson shall own a one-sixth (1/6) interest; and Fox Henderson, Jr., and Fred W. Henderson and Fox Henderson (myself), and Mrs. Fox Henderson (my wife) and Gussie Henderson Jones, and Frank L. Jones, as trustees for Jake Henderson, without bond, shall own a one-sixth ( 1/6) interest. Each party interested is to share equally in all net gains and profits, to share and share alike each one in all gains and all losses in said business of Fox Henderson & Sons, and in a like manner in all losses of every kind sustained by the firm (that is, after all expenses of every kind connected with the business of said Fox Henderson & Sons in the way of living expenses and all others shown by expense account)

are fully paid, as outlined to some extent hereafter but not fully, as there may be many new things to arise at different times that may call for expense, which, if right and correct, should be paid by the firm of said Fox Henderson & Sons; those that I will specially mention as follows: Fox Henderson, Jr., is to be paid for his services for the running of the business, keeping the books, making settlement, and keeping the business moving in every way, loaning out the money (on good security) at 6 and 8 per cent. interest, or at whatever rate of interest him and myself shall decide is best, while I am alive, and after my death at a rate the majority may agree on, or either Fox Henderson, Jr., may decide. The said Fox Henderson, Jr., for all the above is to receive a salary of fifteen hundred ($1,500.00) dollars per annum for his services. As for me and my services, I make no charge whatever. I agree that all my time and judgment used in and for the good of the business shall be entirely free of charge. The main charge and item of expense that is made by me as against the business of Fox Henderson & Sons is the item of general expenditures, etc., charged by me on everything turned over to the business by me, which shall go to make up the capital stock of the said Fox Henderson & Sons, amounting to something in the neighborhood of say about, can't say as to amount, but will say it is, and shall be, about all the property I own of every kind whatever, the addition foots up when all amounts are transferred, all accounts made during the year (1917) nineteen hundred and seventeen, from January 1, 1917, or even November and December (taken for 1917), on up to the winding up of 1917. Thereafter as long as I live each account, note, or mortgage shall go into the business of Fox Henderson & Sons from the beginning of January 1, 1917, whether placed in the business at that date, or any other date before said year of 1917, or any other year thereafter; the only difference being that I am to get credit only for the year the said amount or amounts is put into the business, and on January 1st for the year in which it is placed in by me, let the amount be whatever it may, as it is my full intention to place the majority, if not entirely all, of what I own and possess, even now or at a future date, into the business of Fox Henderson & Sons, composed of Fox Henderson, Fox Henderson, Jr., Fred W. Henderson, Gussie Henderson Jones, and my wife, Sallie E. Henderson, and all of the above, or so many as may continue to live, Fox H., Fox H., Jr., Fred W. H., Gussie Henderson Jones, and Frank L. Jones, and Mrs. Fox Henderson as trustees for my unfortunate boy, Jake Henderson (without bond), his natural life, and at his death to go to the same trustees, or so many as may still live for the benefit of little Dorothy Henderson, his daughter and only child, and if any other children born of his (Jake's) then be treated to share equally with Dorothy by the same trustees. As to the amount to be paid to my unfortunate boy, Jake, and also to his child, Dorothy, or his children, if any others, by the trustees, I will mention later on after considering everything fully. In this agreement by me et al., and understanding as to the one-sixth (1/6) interest, I to-day give them from November or December's new business, 1916, which they will own in the firm at my death and any all of their share of profits and losses outside of my one-sixth individual interest, which is a one-sixth undivided interest. As to my individual interest of one-sixth in case of my death, I wish the entire amount which may stand to my credit on the books of Fox Henderson & Sons, a one-sixth interest in profits and losses from January, 1917, or on books of Fox Henderson, or that may be in my possession or due to me from any source whatsoever, to be disposed of as follows:

"First, I wish fifteen thousand dollars ($15,000.00) of the money to my credit in the firm of Fox Henderson & Sons, which consists of my wife, Sallie E. Henderson, Fox Henderson, Jr., Fred W. Henderson, and Gussie Henderson Jones, and all of the above as trustees for my wayward boy, Jake Henderson, agents or trustees, and to loan said amount at say 6 or 7 per cent. interest on land, and the net proceeds to be used each year in paying the pastors of the different churches, or the churches themselves, and to the Sunday schools and orphans' home, etc., my usual amount of say one hundred dollars each, and less to some, about the same as I do each year. As long as Mary, poor Jake's wife, remains single and unmarried, I want her cared for as we now do it, but should she marry and get herself a new husband, then are not looked upon nor expected to care for her, or keep her up any longer, and I do not wish to do so. Little Dorothy, my boy Jake's dear little girl, I want her always cared for in every way out of my money, to my credit in said firm of Fox Henderson & Sons until she arrives at the age of maturity and then marry ___ home and ask my boys as my heirs to see at all times that she never suffers for anything, and pay it out of money in the hands of the trustees for Jake Henderson to the amount of paying her bills, $75 or $80 per month if necessary (my own effects). Certain amounts must be set aside for the several purposes herein and hereafter mentioned, and loaned out by my boys and heirs, all of them, on land security at a fair interest, and the interest used only for these several purposes, the net amount of interest at 5 per cent., at 6 per cent., or 7 per cent., the best that can be done. Should it be necessary (in the event of my death before any of the other partners of the said firm of Fox Henderson & Sons) to use to the extent in all to the amount of thirty thousand dollars at interest in order that the net income from same may be sufficient to meet these several requests and others that I may hereafter mention, then I request specially that my wishes all be carried out so long as it may be needed. I also request that many poor widows and orphans be helped in a reasonable way, all out of what I may leave in event of my death. My wish is that my poor boy Jake Henderson be paid over to himself by the six trustees named herein the amount from one hundred to two hundred dollars or two hundred and fifty dollars each month during his life, if he should call for it for each month of every year, should the six trustees or the majority of them feel that it is well to do so, considering the manner in which he is acting at all times; otherwise, do not do so to this extent (you six trustees I am talking to) and only do what your judgment tells you do and no more. Jake has I feel shortened my days 10 or 15 years in worry and trouble in the way he has acted, but all this has never seemed to make a particle of difference with him, and of course I have to make the best of it from day to day. Notwithstanding all the trouble he has given me and worry and sleepless nights, he is still my

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