Hood v. Bramlett

• Decision Date: 07 February 1895
• Citation: 105 Ala. 660,17 So. 105
• Parties: HOOD v. BRAMLETT.
• Court: Alabama Supreme Court

17 So. 105

105 Ala. 660

HOOD v. BRAMLETT.

Supreme Court of Alabama

February 7, 1895

Appeal from city court of Gadsden; John H. Disque, Judge.

Action by E. A. Bramlett, as administrator cum annexo testamento against Lewis Harris to recover rent. William H. Hood, as administrator of Louisa Garrett, was substituted as defendant. There was a judgment for plaintiff, and defendant appeals. Reversed.

Dortch & Martin, for appellant.

W. H Denson, for appellee.

McCLELLAN J.

The will of Pleasant Garrett, deceased, contains the following devise and bequest: "To my beloved wife, Louisa Garrett I will and bequeath unto her my whole estate, both real and personal, after my just debts are paid, so long as she may live, to use and control as she may see proper. At her death I will and bequeath that one-half of my estate to be at her disposal, to will and bequeath as she may see proper, and the other half of my estate to be sold by my extr. and divided into eight equal parts, and distributed as follows," etc., naming the persons to whom said shares are to be distributed. Pleasant Garrett died many years ago, leaving a certain plantation, which passed under his will to Louisa Garrett, who survived him. She died in November, 1890, without making any disposition, by will or otherwise, of said plantation. The present action is prosecuted by Bramlett, as the administrator cum annexo testamento of Pleasant Garrett, deceased, for the recovery of rent of a part of said plantation for the year 1891. It was instituted against one Harris on the theory, which is controverted, that he was the tenant for that period of Bramlett, as such administrator; but Hood, as the administrator of Louisa Garrett, was, upon the affidavit and suggestion of Harris that he claimed the money in suit, and payment by Harris of the amount sued for into court, and without objection on the part of the plaintiff, substituted for Harris as defendant to the action, under section 2610 of the Code. This substitution was made in the justice's court, and judgment was there rendered in favor of the defendant Hood, as administrator, etc., for the sum deposited by Harris, and costs. From this judgment Bramlett appealed to the city court, where the judgment from which this appeal is prosecuted by Hood was rendered in his favor for said sum and costs. The trial was had without jury, and as the controversy had become one between the estates of Pleasant and Louisa Garrett, respectively, turning upon the ownership of the land from which the rent in suit issued,-the consideration of Harris' technical liability to Bramlett because of attornment to him, or promising to pay him the rent, being eliminated from the case by the form the litigation assumed upon the coming in of Hood,-the judgment of the city court in favor of Bramlett must have proceeded upon the theory that on the death of Louisa Garrett, without a will devising this plantation or any part of it, the whole tract of land reverted to the heirs of Pleasant Garrett. This view cannot, in our opinion, be supported. The question is controlled by the following sections of the Code, and more especially by the two quoted last below.

"1850. Power of disposition to owner of particular estate; effect of. When an absolute power of disposition, not accompanied by any trust, is given to the owner of a particular estate for life or years, such estate is changed into a fee absolute, as to the rights of creditors and purchasers, but subject to any future estates limited thereon, in case the power is not executed, or the lands sold for the satisfaction of debts during the continuance of such particular estate.

"1851. Effect of power of disposition in one not holder of particular...