Howell v. Ward

• Decision Date: 09 May 1935
• Docket Number: 4 Div. 801
• Citation: 161 So. 487,230 Ala. 379
• Parties: HOWELL v. WARD et al.
• Court: Alabama Supreme Court

161 So. 487

230 Ala. 379

HOWELL v. WARD et al.

4 Div. 801

Supreme Court of Alabama

May 9, 1935

Appeal from Circuit Court, Barbour County; J.S. Williams, Judge.

Bill in equity by Maud Howell, individually and as executrix of the will of G.M. Howell, deceased, against Alice Ward, as guardian of Myrtle Brock, a minor, and others. From a decree sustaining a demurrer to the bill, complainant appeals.

Reversed and remanded.

202k145 Abandonment, Waiver, Forfeiture, or Release.

If guardian's mortgage to secure moneys of ward was executed in accordance with statute, and if court's order authorizing mortgage was valid, mortgage was superior to homestead rights of guardian's widow where wife joined in mortgage and waived as to cestui que trust her homestead rights. Code 1923, §§ 7919, 7942, 8256.

Chauncey Sparks, of Eufaula, for appellant.

O.S Lewis, of Dothan, for appellees.

THOMAS Justice.

The appeal is from a decree sustaining demurrers to the bill, and for the dissolution of an injunction.

Appellant Maud Howell, is the executrix of the will of George M Howell, the deceased husband, and a distributee and devisee thereunder with the respondents. After her qualification as executrix, she filed a bill in her representative capacity and as an individual for several purposes, namely, for the removal of the estate into equity for a settlement of the guardianship of her deceased testator with his ward, Myrtle Brock, one of the respondents (section 8207, Code), and to correct a description and declare a mortgage indebtedness to that ward. This settlement pending in equity is contested by that minor and ward (Myrtle Brock, who was not a surviving minor child of decedent) only, through her general guardian and a respondent, Alice Ward, and by her guardian ad litem. The other respondents permitted decrees pro confesso to be entered against them.

It is averred that the executrix, having given due notice of her acceptance of appointment and qualification as executrix of the will of Mr. Howell, and after six months had expired, filed the bill stating the interests and rights of all parties that represented the whole title to the properties of the estate. This is to say, this pleading (1) sought the removal of the administration of the estate from the probate court into the circuit court, in equity; (2) sought a correction of the description of the real property (the subject of the mortgage and partly embraced in the homestead decree); (3) sought the protection of complainant's homestead rights, by due order of sale of these and other lands of the estate (which largely exceeded the homestead allowance), and asked the payment to complainant of $2,000 in lieu of her homestead rights and its due investment for herself and the remaindermen, supervised by the court; (4) alleged that the sale was necessary for the payment of debts of the estate according to priority or preference under the mortgage contract, and under the law; (5) alleged that a sale of the lands was necessary to effect a distribution among the several beneficiaries as provided by the will and in due course of administration; and (6) prayed for other and general relief.

The will of decedent and the mortgage in question were exhibited in illustration and aid of the bill and its averred facts ( Grimsley v. First Ave. Coal & Lumber Co., 217 Ala. 159, 115 So. 90), and also the corrected descriptions as per the Espy maps of the several tracts of decedent's lands.

It is alleged that the widow, as an adult devisee under the will, joined as a complainant in her individual right for the purpose of giving her consent to the sale of all the lands of decedent for the purposes named in the bill; and claimed the right of redemption, if necessary and she so desires, to preserve her right of homestead. Dewberry et al. v. Bank of Standing Rock et al., 227 Ala. 484, 150 So. 463.

It is further alleged that on March 14, 1934, the homestead set apart to her by commissioners appointed by the probate court was approved by the court; that said homestead so set aside is a part of the lands sought to be conveyed by the mortgage (and alleged to have been incorrectly described); that the sum intended to be secured by the mortgage is averred to be "owing by the decedent to his minor ward, the said Myrtle Brock"; that the total amount of land embraced in the mortgage, namely, 640 acres, is worth much more than the amount of the indebtedness owing by the decedent to his ward; that out of the total purchase price of said land there should be, or perhaps will be, sufficient to set aside to complainant the homestead in kind, or, in lieu thereof, the sum of $2,000 out of the sale price of lands conveyed by said mortgage; that "complainant claims her homestead under the laws of Alabama as the surviving widow of decedent, G.M. Howell, and as hereinafter prayed claims a homestead in kind and in the 160 acres of land heretofore set aside and allotted to her by the probate court of Barbour county; or in lieu of said homestead in kind claims the sum of $2,000 out of the purchase price of said land which embraced the homestead of decedent, if sold in lump, over and above the amount necessary to pay the indebtedness owing under the mortgage above described in paragraph sixth. And the complainant respectfully shows unto your honor that the equity of redemption of the decedent in the lands embraced in said mortgage executed by him to himself, guardian of Myrtle Brock, is worth more than the indebtedness owing, namely, the sum of $1,493.77, by decedent to the estate of said minor."

The bill further avers the necessity for a sale of all of the real estate of the estate for the purpose of allowing complainant's homestead; paying of secured and unsecured debts; paying the costs of due administration; and for division and partition among the joint owners of said lands according to the terms of the will.

The prayer of the bill is for the removal of the administration of the estate to the circuit court, in equity; for a correct description of the property, if incorrect, and, if not, that a correct description be declared and determined; that a due order of sale of the lands be made in lots or parcels, to induce advantageous purchase prices; that the balance due on the mortgage be ascertained and the debt of guardianship be paid out of the proceeds of the sale of the lands subject thereto; that complainant be permitted to claim her exemption free from the claims of the minor (grandchild) and from any claim for debts or distribution to the devisees. It is further a part of the prayer that the "court will order a sale of the land embraced in the mortgage executed by decedent to secure indebtedness owing by him to his minor ward, as a whole, or in parcels, as follows: (a) Will order a sale of that portion of said land embraced in said mortgage not constituting the homestead of the decedent at the time of his death, and which homestead has heretofore been set aside by the probate court by metes, boundaries and description and constituting not more than 160 acres, and in value not more than $2,000, to your honor's oratrix, and if the proceeds of said land, which amounts to 480 acres, be not sufficient to pay the indebtedness owing to said minor ward of decedent; then (b) this honorable court will declare the balance owing under said mortgage and will give complainant the right to pay said amount, it she so desires, and claim the said 160 acres as her exemption, free from any further, other, or additional claims to the said minor ward, and from any claim for debts, or distribution to the devisees; or (c) this honorable court will order a sale of said homestead apart from, or in connection with, and in lump, or in separate parcels, the other land embraced in the mortgage in this bill of complaint described as owing by decedent to his ward, Myrtle Brock, and after paying the amount owing on said mortgage, will order the remainder of the purchase price, but not to exceed the sum of $2,000, set aside to complainant as and for and in lieu of her homestead exemptions allowed to her under the laws of Alabama, and will enter such other orders as may be necessary, protecting said homestead or $2,000 in lieu thereof, and ordering its investment in such way as the court may finally determine, for the benefit of complainant; or (d) this honorable court will order a sale of the whole of the lands owned by the decedent at the time of his death, and shall apportion the proceeds, first, to the payment of the mortgage owing on that portion of said lands embraced within the mortgage described in paragraph Sixth hereof, second, to the allotment of the sum of $2,000 in lieu of homestead exemptions to your honor's oratrix, to be invested in such way as this honorable court may determine for the protection of the interest of reversioners, third, for the payment of debts owing by the estate of decedent, other than that owing the estate of the minor ward, Myrtle Brock, and the costs and expenses of the administration of the estate of said decedent, and, fourth, distribution of the remainder of the proceeds of the purchase of said lands among the joint owners thereof, who are the devisees under the will of G.M. Howell"; that the court will confirm the allotment of the homestead made to her as the surviving widow of decedent, subject to the payment of the indebtedness ascertained to be due by decedent to his minor ward; and the court is duly invoked to make the necessary final orders for securing to the widow the homestead "in kind, or in cash," as may be determined by the court in its decree; and, as we have indicated, concludes with a prayer for "such other, further, different and additional relief as she may be entitled to in the premises,...