Laney v. Dean

• Decision Date: 23 January 1958
• Docket Number: 6 Div. 4
• Citation: 100 So.2d 688,267 Ala. 129
• Court: Alabama Supreme Court
• Parties: John P. LANEY, Adm'r, et al. v. L. E. DEAN.

Page 688

100 So.2d 688

267 Ala. 129

John P. LANEY, Adm'r, et al. v. L. E. DEAN.

6 Div. 4.

Supreme Court of Alabama.

Jan. 23, 1958.

Rehearing Denied March 6, 1958.

Hugh A. Locke, Hugh A. Locke, Jr., and Ryburn H. Bailey, Birmingham, for appellants.

Lange, Simpson, Robinson & Somerville and J. G. Adams, Jr., Birmingham, for appellee.

LAWSON, Justice.

E. E. Dean, who resided in Jefferson County, died in 1928. He left a will, made in January of that year, which was admitted to probate soon after his death.

In his will E. E. Dean appointed his son as sole executor and gave to him one half of the estate after the payment of funeral expenses and just debts.

The testator made disposition of the remainder of his property in Items Four and Five of his will, which read:

'Item Four

'The residue and balance of my estate left after the payment of my just debts and funeral expenses and after the bequest to my son as set out in Item Three above, I do desire to place in trust for the purpose hereinafter named, and for said purposes I do hereby appoint my son, L. E. Dean, Trustee, to perform the following trust provisions of this my will. First, I do bequeath to the said L. E. Dean, out of said residue and balance of my estate, the sum of $1000.00, in trust to him in two equal parts that he shall have, hold, handle, invest and at his discretion dispose of same to the equal use of my two grandchildren, Lacie Lee Laney and Billy (Bill) Laney, and for the purpose of helping each of the two grandchildren acquire a grammar school, a high school or a practical business education. And it is my desire that at such time as each of said two grandchildren shall attain the age of twenty one years said Trustee shall turn over to said grandchildren the residue of his (or her) one half part of said trust fund, such residue to become the property of said grandchild absolutely and in fee simple forever.

'Item Five

'The residue and balance of my property and estate left after the payment of my just debts and funeral expenses; and after the bequests as set out in Item Three, and Item Four, above, I do desire to place in trust for the purposes hereinafter named, and for said purpose I do hereby appoint my son, L. E. Dean, Trustee, to perform the following trust provisions of this my will. In case I should die before January lst, 1938, I do bequeath to the said L. E. Dean the entire residue and balance of my property and estate, in trust to him that he shall have, handle, and hold same until January 1, 1938, to the use of my daughter, Mrs. Evelyn Lacie Dean Laney, at which time, if my said daughter be then living, the said trustee shall turn over all of said property and estate to the said Mrs. Evelyn Lacie Dean Laney, such property and estate to rest in her and for her sole use, in fee simple forever; and should my said daughter, Mrs. Evelyn Lacie Dean Laney, die before January 1, 1938, then said Trustee to have and hold said property in trust for the use of my five grandchildren, Lacie Lee Laney, Billy (Bill) Laney, Alice Dean Laney, John Laney and Wilson Laney, until such time as the youngest shall attain the age of twenty-one years, said property and estate then to go absolutely and in fee simple to said grandchildren; and in case any of said grandchildren shall die before the termination of said trust then the lawful issue of said grandchild to take said grandchild's part, or if there be no such lawful issue then said deceased grandchild's part to go in equal parts to the surviving said grandchildren.

'In case I should die after January 1, 1938 it is my desire that said residue and balance of my property and estate shall go to my said daughter, Mrs. Evelyn Lacie Dean Laney, absolutely and in fee simple, if she be living at the time of my death; or if she be not living at the time of my death, then said property and estate to go to L. E. Dean, in trust for the use of my said five grandchildren in the same manner as hereinbefore set out.

'It is my desire that the said Trustee shall have complete and sole charge of all property and interests constituting said trust funds, to hold, handle, manage, sell, convey, invest, and in such manner as he deems best for the interest of all concerned. It is my further desire that my said daughter shall have ample funds and income to provide for herself and such of her children as may make their home with her comfortably and suitably, and I will and direct said Trustee that he shall sell and convey such real estate or personal property as is necessary to provide for my said daughter.'

Letters testamentary were duly issued to L. E. Dean. He acted as executor until his resignation in 1938, after which letters de bonis non with will annexed were granted to Basil A. Wood. In February of 1943, after the administration of the estate of E. E. Dean had been removed to the circuit court of Jefferson County, in equity, that court rendered a decree accepting Wood's resignation 'as and when his final account is filed and determined.' Wood was directed 'to file an accounting of his actions in the management of the affairs of the said estate * * *.' On September 13, 1943, Wood filed his report of his activities as administrator de bonis non and petition for final settlement.

On April 20, 1944, L. E. Dean and Mrs. Laney, the two principal beneficiaries under the will of E. E. Dean, signed the following written agreement:

'State of Alabama

'Jefferson County

'Know All Men By These Presents: That whereas L. E. Dean is over twenty-one years of age and an heir to one-half of the estate left by his father, E. E. Dean, and in addition is a creditor of the said estate of E. E. Dean, deceased, and Mrs. Lacey Dean Laney is over twenty-one years old and an heir to one-half of the said estate less One Thousand ($1000) Dollars out of her one-half to be given to her two children named in said will left by Mr. E. E. Dean, and,

'Whereas the said estate has been in court for a long time and substantial expenses and lawyers fees have been created and the administrator has been paid over Two Thousand ($2000) Dollars and there appears to be little likelihood of it being settled and the property distributed to the parties thereto without incurring greater expenses.

'So therefore to expedite the settling of the said estate and to save expenses in the settling of said estate and to save having to sell all the property of the said estate for payment of debts to L. E. Dean and for division, the two principal heirs named, L. E. Dean and Lacey Dean Laney have agreed and do hereby agree to be bound by and abide by the average value of each piece of property still remaining in and belonging to the estate of E. E. Dean, deceased, that shall be found and appraised by two disinterested official appraisers of the Realty Board Appraisers, who are members of the Birmingham Realty Board. That the expenses of said appraisal is to be paid out of the moneys of the estate as the part of the expense of said estate and that if the appraised value of each piece of property cannot be agreed upon by the appraisers then the average values shall be taken as ascertained by the two appraisers.

'By mutual consent it is agreed that the said estate shall be divided among the heirs and devisees as their interest appear in accordance with the conditions of the estate and the terms of the will taking into consideration the distributive share of said estate already received by Mrs. Lacey Laney, after all debts and costs of the administration have been paid, and they agree to execute conveyances to each other to carry out said division; and it is agreed that the said appraised value shall be the value to be used in so settling up the estate and in paying the amount of the indebtedness to L. E. Dean, the same as though the property had sold for division for the amount of the appraised value.

'It is further agreed that in the event the two parties hereto cannot agree on the respective pieces of property that shall be taken by each in the distribution as each is respectively entitled to under the condition of the said estate and under the terms of said will then each of the parties hereto agree to appoint a representative and those two representatives shall then appoint an umpire or a third person and these three people shall partition and distribute the said property of the E. E. Dean estate, to L. E. Dean as a creditor, and to the said heirs in the amount that they are respectively entitled to as heirs. It is understood and agreed that Mrs. Laney shall have a part of the income bearing property as is fair and equitable under the distribution which is proportionate to what she is entitled to as to the amount L. E. Dean is entitled to. It is further agreed that Mrs. Laney shall have the right to name the two official Realty Board appraisers who shall appraise this said property.

'It is further agreed the value set by these appraisers shall be binding on both parties and that if either party after the appraisal is made refuses to abide by the said appraisal, and the distribution made by their representatives and the umpire, that the court shall make an order approving said appraisal as an official appraisal of the court and appoint three commissioners to partition and distribute the property to L. E. Dean first as a creditor and then to the heirs and devisees as they may be entitled thereto under the condition of the estate and order of court based on value of property as shown by said appraisal.

'In witness whereof the parties hereto have set their hands and seals this 20th day of April, 1944.'

Thereafter on December 28, 1944, three prominent members of the appraisal committee of the Birmingham Real Estate Board made a report concerning the value which they had placed on most of the real estate remaining in and belonging to the estate of E. E. Dean, deceased. On February 5, 1945, Billy Laney appointed his mother, Mrs. Lacey Dean Laney, his agent and attorney in...