Kelly v. Richardson

• Decision Date: 27 July 1893
• Citation: 100 Ala. 584,13 So. 785
• Parties: KELLY v. RICHARDSON. RICHARDSON v. CARROLL. CARROLL v. RICHARDSON.
• Court: Alabama Supreme Court

13 So. 785

100 Ala. 584

KELLY v. RICHARDSON.

RICHARDSON v. CARROLL.

CARROLL v. RICHARDSON.

Supreme Court of Alabama

July 27, 1893

Appeal from chancery court, Butler county; John A. Foster Chancellor.

The bill in this case was filed by J. C. Richardson, as the executor of J. T. Perry, deceased, against the Sarah E Kelly, J. M. Carroll, and others, the persons to whom the said J. T. Perry, by his last will, bequeathed his personal property and devised his realty, and prayed that the administration of said estate be removed into the chancery court, that the will be construed, and that the executor be directed as to his administration of the said last will and testament. There are three separate appeals from the decree of the chancellor. Sarah Elizabeth Kelly brings one appeal J. C. Richardson, as executor, brings the other; and J. M Carroll brings the other. Each one of the appellants respectively, assigns errors. Hermann Dohrmeier also assigns errors. The appeal of Sarah E. Kelly is affirmed, that of J. C. Richardson is reversed and remanded, and that of J. M. Carroll is affirmed.

The original bill was filed on December 9, 1887. The prayer of the bill is sufficiently stated in the opinion. The facts of the case, as shown by the original and amended bills, the answers thereto, and the testimony, are substantially as follows: J. T. Perry died at Greenville, Ala., on the 24th of June, 1887, leaving an estate consisting of real and personal property. No wife or child survived him. His next of kin are his sisters, M. I. Rothenhofer, Mary Elizabeth Kelly, (also called Sarah Elizabeth Kelly,) and Martha A. Fulmore. After his death, two instruments in writing were found; the one purporting to be his last will and testament, with a codicil thereto, and one purporting to be a deed conveying certain realty to Sarah Elizabeth Kelly. This deed is not shown to have been delivered to Mrs. kelly, nor to any one for her during the life of Perry, nor by his authority. Mrs. Kelly claims, however, that the deed was handed to J. M. Carroll by Perry, and that J. M. Carroll, after the death of Perry, gave it to her. Under this deed she entered into the possession of the property shortly after the death of Perry, and has since received the rents thereon. Mrs. Kelly is insolvent. On the 27th of July, 1887, M. I. Rothenholder and J. M. Carroll propounded the instrument which purports to be the said last will and testament, and the codicil thereto, in the Butler probate court, for probate and record, as the last will and testament of the said J. T. Perry, deceased. These instruments, so propounded for probate and record, are copied in the opinion. On the 21st day of July, 1887, Sarah Elizabeth Kelly filed her grounds of contest to said will and codicil in the Butler probate court. On the 27th of July, 1887, said Mrs. Kelly and Mrs. Rothenhofer and J. M. Carroll executed a contract in writing, by the terms of which Mrs. Kelly withdrew her contest of the said will and codicil, and Mrs. Rothenhofer conveyed her pecuniary legacy of $500 to Mrs. Kelly, and Mrs. Kelly then conveyed the same to J. M. Carroll; and J. M. Carroll agreed to pay Mrs. Kelly $1,550 for her interest, rights, claims, and property in any and all property owned or held by J. T. Perry at the time of his death, or to which she was or might be entitled as the legatee, devisee, or otherwise, of said Perry, and for the $500 legacy conveyed to her by Mrs. Rothenhofer, and her claims against Carroll under section 3 of the will and codicil; and J. M. Carroll further agreed that the executor should hold his entire property and interest in said estate in pledge for Mrs. Kelly until he had paid Mrs. Kelly the $1,500, and contracted that the executor should neither pay nor surrender to him any sum or property from the said estate until Mrs. Kelly was paid. After the execution of this contract, on the 28th day of July, 1887, the will and codicil were probated and recorded in the Butler probate court, and letters testamentary issued from said probate court to said J. C. Richardson, authorizing him to take upon himself the execution of said will and codicil. Immediately upon said Richardson's appointment as said executor, Mrs. Kelly presented to him said contract which she had made to with J. M. Carroll, and notified said Richardson that she would hold him liable if he failed to hold for her to property in pledge under the said contract until her debt was paid by J. M. Carroll, which has yet never been paid. The property of the Perry estate was duly appraised, and appraisement and inventory delivered to Richardson. Under an order of the probate court, said Richardson sold the stock of merchandise, and some other personal property, as soon as valid claims had been presented to him, equal to the value of the personal property belonging to the estate. On the 15th of October, 1887, when said Richardson was commencing such sale of the personal property in accordance with the mandate of the order of the probate court, there was served on him an original bill of complaint filed by Mrs. Rothenhofer and the Dohrmeier devisees against him (said Richardson) and J. M. Carroll, seeking, among other things, to enjoin the sale then about to be made, and to contest the codicil of the will, and to discover an alleged large amount of the assets of the Perry estate, alleged by the bill to be in the hands of J. M. Carroll. By consent of the complainants to said bill, said Richardson desisted from selling certain portions of the said personalty, and proceeded with the sale as to the balance. On the 29th of October, 1887, J. M. Carroll also filed an original bill of complaint in the Butler chancery court against said Richardson, to require him to turn over to him (Carroll) the property bequeathed to him (Carroll) by the alleged codicil, and the money arising therefrom, and for an account of damages for the sale of such property by said Richardson as executor of Perry. The codicil was at that time being contested on and by the original bill, then pending, of Mrs. Rothenhofer, filed on the 15th of October, 1887, against J. M. Carroll and said Richardson, as Perry's executor. On the 23d of June, 1889, appellee Martha A. Fulmore, one of the respondents to said Richardson's bill of complaint, filed an original bill in the circuit court of the United States for the middle district of Alabama against said Richardson, as the executor of J. T. Perry, and the legatees and devisees under the will and codicil, and also against the next of kin of said J. T. Perry, seeking by her said bill (1) to contest, annul, and set aside the alleged will and codicil, and the probate thereof; (2) to have the estate of said J. T. Perry distributed under the Alabama statute of descent and distribution; (3) and for the removal of the estate of J. T. Perry into the circuit court of the United States, and there have said Richardson, in the federal court, distribute said estate; and (4) for a final settlement of said estate in said federal court by said executor. This proceeding of Mrs. Fulmore in the United States circuit court was made known and pleaded in the court below by an amendment or supplementary bill filed January 13, 1890. On the 5th of January, 1891, said Richardson, in the court below, amended his original bill, to which he made all the original respondents parties. By that amendment it was shown that on the 13th of December, 1890, the said United States court decided said cause adversely to the said Martha A. Fulmore, from which decision she has served notice on said Richardson of an appeal by her to the supreme court of the United States. On January 14, 1891, one J. R. Porterfield, as guardian of some of the devisees, and the guardian ad litem of the others, who were minors, filed their petition, addressed to the chancellor, and prayed to have turned over and delivered to them the immediate possession of the real property which was devised and bequeathed to them under and by the will and codicil of J. T. Perry, deceased. This petition was submitted to the chancellor together with the cause, and on January 30, 1891, the chancellor rendered a decretal order granting the relief prayed for in said petition of Porterfield and others, and directing that the respective devises be turned over to the devisees or their guardian, "subject to the further orders of this court, without selling or incumbering the same." On the same day the chancellor rendered his final decree, which, so far as pertains to the issues involved in this appeal, was in the following language: "There is no doubt of the legal proposition that the debts must be paid. They must be paid out of the property not bequeathed, if there be any such. If there be no such property, then the debts must be paid out of the property given to the residuary legatee, or devisee. If there is no residuary legatee, then they must be paid out of the general legacies. But, if there are not general legacies, then the debts must be paid by contribution from the legatees whose legacies are specific. It is the duty of the executor to exhaust all other remedies, and resort to all other means, before he will devote a specific legacy to the payment of the debts; and, when it becomes necessary to resort to the specific legacies, he must do so in such a way as to make the burden fall equally on all of the specific legacies, proportionately and equally, if possible. If the executor is about to select the property of one of the specific legatees, and appropriate it to the payment of debts, there is a remedy in this court. By reference to the will, it is my construction that the bequest to Mahala I. Rothenhofer of all his personal property, with the exception named, makes her a residuary legatee, and the...