Holt v. Hermann & Hynde

• Decision Date: 04 December 1913
• Parties: HOLT et al. v. HERMANN & HYNDE.
• Court: Alabama Supreme Court

64 So. 431

185 Ala. 257

HOLT et al. v. HERMANN & HYNDE.

Supreme Court of Alabama

December 4, 1913

Rehearing Denied Feb. 5, 1914

Appeal from Circuit Court, Mobile County; Samuel B. Browne, Judge.

Assumpsit by William A. Holt and others, by next friend, against Hermann & Hynde. From a judgment for defendants, plaintiffs appeal. Affirmed.

The will after devising certain property to two daughters and a son, contains the following:

Item 7 "I give and devise and bequeath unto my grandson William A. Holt the house and lot on the southeast corner of Lawrence and Eslava streets in the city of Mobile."

Item 8 "I give and bequeath and devise unto my grandson Eugene Holt the house and lot on the south side of Eslava street second east of Lawrence street, in the city of Mobile.

"All the rest and residue of my property, of every kind and description, I give, devise and bequeath unto my five children and two grandchildren, taking their mother's share, share and share alike."

The will was dated February 13, 1903. The plaintiffs in the case were the beneficiaries named in items 7 and 8, and it was agreed that all the beneficiaries named in the will are living, and that at the date of the will the testatrix was in the actual possession of a lot of land in the southwest corner of Elmira and Lawrence streets, and that subsequent to a purchase the said testatrix had built thereon two houses facing Elmira street, and extending back parallel, or nearly so, with Lawrence street, and that she had erected upon the south line of said lot a shed for housing fuel, and also certain closets. It is further agreed that subsequent to the making of said last will and testament, and during her life testatrix erected upon the southern portion of said lots another house, and in order to do this it was necessary to have said shed and closets torn down and moved. She also had erected a fence as shown by the map. It it further agreed that this condition of three separate houses and three separate tenants of three separate portions of one lot divided from each other by partition fences on all sides where they join, continued to exist at the time of the death of said testatrix, and still continues to exist. It is agreed further that defendants were the agents of said testatrix during her life for the renting of said property, and have continued to be the agents for renting of the property since her death. It is further agreed that, by the tacit consent of all the heirs, legatees, and devisees of testatrix defendants collected the rents from the three houses for the benefit of such said heirs, devisees, and legatees as might be justly entitled thereto, and that since the decision in the case of Holt v. McEvoy, 52 So. 323, on the 21st day of April, 1910, by the Supreme Court of Alabama, said defendants have continued to rent said property, as the agents of James McEvoy and Elizabeth McEvoy; said James J. being the owner of the house nearest the corner of Lawrence and Elmira streets, and the said Elizabeth being the owner of the house situated upon the south side of Elmira street next west of James J. McEvoy's house, and the said Elizabeth and James together claiming the house situated upon the rear of said lot. By item 1 of the will, in addition to other property, Elizabeth...