Kimbrough v. Dickinson
| Decision Date | 24 February 1949 |
| Docket Number | 1 Div. 309. |
| Citation | 39 So.2d 241,251 Ala. 677 |
| Parties | KIMBROUGH et al. v. DICKINSON et al. |
| Court | Alabama Supreme Court |
Roy W. Kimbrough, of Thomasville, John A Dickinson, of Prattville, and Hill, Hill & Whiting and Richard T. Rives, all of Montgomery, for appellants.
Paul S. Jones and Adams & Gillmore, all of Grove Hill, for appellees.
Shelton C. Dickinson departed this life December 21, 1943, leaving a last will and testament dated June 20, 1939, which was duly probated in Clarke County, Alabama.
Item three of the will is as follows:
The will named Robert L. Dickinson and Maude Dickinson as executor and executrix thereof. Robert L. Dickinson died prior to the death of the testator, leaving five children surviving. Maude Dickinson was appointed sole executrix of the will of Shelton C. Dickinson. Thereafter, in October 1944, the administration of the estate of Shelton C Dickinson, deceased, was duly and legally removed to the Circuit Court of Clarke County, in Equity. The testator left surviving certain other heirs at law.
His estate was valued at approximately $250,000.00. In the main, it was undisposed of, other than by said item three. Controversies arose among the heirs at law as to the proper construction or interpretation of said item three. Maude Dickinson, on the one hand, insisted that the proper interpretation, and the one intended by the testator, was that item three constituted a gift to a class composed of persons whom the testator regarded and identified as his 'nearest living kin,' and that she and Robert L. Dickinson constituted that class: that Robert having died prior to the death of the testator she was the sole surviving member of that class at the time of testator's death, and, as such, took the entire residuary estate. On the other hand, some of the next of kin took the position that item three was a gift to Robert L. Dickinson and Maude Dickinson as individuals, and that the gift to the brother lapsed by reason of his death, and therefore descended as intestate property.
Under these circumstances, Maude Dickinson, as executrix of the will of Shelton C. Dickinson, deceased, instituted suit in the Circuit Court, in Equity of Clarke County, seeking a construction or interpretation of the will on account of an alleged ambiguity in item three. In this suit she also joined individually and as a legatee under the will. In this phase of the bill she sought a decree to the effect that item three constituted a gift to a class; that she was the sole surviving member of that class and, as such, took the entire residuary estate. The other heirs at law of Shelton C. Dickinson, deceased, forty-nine in number, were made parties respondent to the bill of complaint. Some of the respondents were minors and some were in the Armed Forces of the United States in time of war.
The court appointed Hon. Roy W. Kimbrough, a practicing attorney of Clarke County, Alabama, as guardian ad litem for respondents Clayton Foscue, Jr., Sidney Pugh, Jr., and William C. Dickinson, minors, and as attorney ad litem for Clayton Foscue, Jr., and Clayton Dunn, who were in the Armed Forces of the United States at the time the bill was filed. In addition to these minors and soldiers, Mr. Kimbrough represented, by private employment, six other respondents.
The court by appointment named Hon. John A. Dickinson, a practicing attorney of Autauga County, Alabama, as attorney ad litem for William C. Dickinson, James S. Dickinson and Edward E. Dickinson, respondents who were also in the Armed Forces of the United States when the bill was filed. And in addition, Mr. Dickinson, by private employment, represented three other respondents.
Representing the parties respondent, as above stated, Mr. Kimbrough and Mr. Dickinson interposed demurrers to the bill of complaint. Twenty-one respondents suffered decree pro confesso to be entered against them, and the remaining respondents filed answers favorable to the contention of Maude Dickinson. The demurrer took the point that item three of the will of Shelton C. Dickinson, deceased, was not ambiguous, and that there was no room for construction or interpretation. The trial court overruled the demurrers to the bill, and respondents, represented by counsel as aforesaid, appealed to this Court. Pending the appeal to this Court, four of the appellants employed the law firm of Hill, Hill, Whiting and Rives of Montgomery, Alabama, to represent them on the appeal.
This Court, 24 So.2d 424, reversed and remanded the cause to the Circuit Court, in Equity, of Clarke County for further consideration, and held, in effect, that item three of the will did not show such an ambiguity as requires interpretation, was not a gift to a class, and that the devise to Robert L. Dickinson lapsed upon his death before that of the testator, and as to which Shelton C. Dickinson died intestate, and that it must be distributed according to the statutes of descent and distribution.
After the cause was remanded to the lower court, that court, on June 12, 1946, entered a decree sustaining the demurrers to the bill of complaint, dismissed it, and taxed complainants with the costs of court.
On July 9, 1946, Roy W. Kimbrough, in individually and as solicitor for the respondents, represented by him, and John A. Dickinson, individually, and as solicitor for the respondents represented by him, and the law firm of Hill, Hill, Whiting and Rives, individually and as solicitors for the respondents represented by them, filed in said cause their application or petition for a rehearing and modification of the decree of June 12, 1946. Petitioners prayed that the execution or operation of the decree of June 12, 1946 be suspended, and that their application be set down for a hearing, and the cause restored to the docket in order that justice and equity be done in the premises: that pending such hearing, the decree be amended and modified so as to strike therefrom its provision for taxation of costs in said cause. Further, the petitioners in substance prayed that upon a hearing of the petition the court would make and enter a decree to the effect that a common fund had been realized or preserved for a class consisting of all the respondents, by having nine-twentieths of the residuary estate of Shelton C. Dickinson, deceased, vest in them through the efforts and services of petitioners; that the court ascertain and fix a reasonable and proper solicitors' fee for each of the solicitors herein, that is to say, Roy W. Kimbrough, John A. Dickinson and Hill, Hill, Whiting and Rives, and that said fees be taxed against that part of the trust estate realized or preserved, or, if mistaken in their prayer, to have said fees taxed against that part of the trust estate realized or preserved, that the court fix a reasonable attorneys' fee for said representation and declare and establish a lien on the respective interests of the respondents represented by them, and for general relief.
On July 17, 1946, the court entered a decree, in effect, striking from the decree of June, 1946, the provision taxing costs of court, restoring the cause to the docket and setting the petition down for a hearing on September 9, 1946. On September 12, 1947, the court entered a decree, in effect, allowing guardian ad litem and attorney ad litem fees to be paid out of the entire residuary estate, and taxed as costs of court, and denied petitioners' prayer that they be allowed a reasonable solicitors' fee out of the nine-twentieths' part of the residuary estate realized or preserved, and denied petitioners' prayer for the court to fix a lien on the interests of the parties represented by them. The court in its decree retained jurisdiction of the cause for the purpose of final settlement of the estate. From the decree of September 12, 1947, this appeal is prosecuted. On submission here, appellants prayed for the alternate writ of mandamus in the event an appeal was not the proper method of review.
Section 754, Title 7, Code of 1940, provides:
'From any final judgment or decree of the circuit court, or courts of like jurisdiction, or probate court, except in such cases as are otherwise directed by law, an appeal lies to the supreme court, for the examination thereof as matter of right, on the application of either party, or his personal representative; and the clerk, register, or judge of probate, must certify the fact that such appeal was taken, and the time when, as part of the record, which gives the Supreme Court jurisdiction of the case.'
In Ex parte Elyton Land Co., 104 Ala. 88, 15 So. 939, 940, Chief Justice Brickell said:
In De Graffenried v. Breitling, 192 Ala. 254, 68 So. 265, 267, this Court quoted the foregoing from the Elyton Land Company case, and following quotations from Alexander
v. Bates, 127 Ala. 328, 28 So. 415, 419; Stein v. McGrath, 128 Ala. 175, 30 So. 792, and Herstein v. Walker, 90 Ala. 477, 7 So. 821, said:
'The rule is best stated in Adams v. Sayre, 76 Ala. 509 as: ...
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