Leyden v. Bentley

• Decision Date: 30 July 1970
• Docket Number: 5 Div. 895
• Citation: 286 Ala. 174,238 So.2d 342
• Parties: Louise LEYDEN et al. v. Mary Upchurch BENTLEY et al.
• Court: Alabama Supreme Court

Page 342

238 So.2d 342

286 Ala. 174

Louise LEYDEN et al. v. Mary Upchurch BENTLEY et al.

5 Div. 895.

Supreme Court of Alabama.

July 30, 1970.

Longshore & Longshore, Birmingham, for appellants

G. C. Walker, Reynolds & Reynolds, Clanton, for appellees.

LAWSON, Justice.

Mary Della Latham, who was never married, died testate on June 20, 1968. Her will was duly admitted to probate and record in the office of the Judge of Probate of Chilton County on October 9, 1968, on which date Mary Upchurch Bentley, a niece of Miss Latham, was appointed executrix of the estate of Miss Latham. The administration of said estate was removed to the Circuit Court of Chilton County, in Equity, on March 24, 1969.

On its face the will of Miss Latham is the essence of simplicity. It reads:

'LAST WILL AND TESTAMENT

'STATE OF ALABAMA

CHILTON COUNTY

'I, Mary Della Latham, a resident citizen of Chilton County, Alabama, and being over the age of twenty-one years, and being of sound mind and disposing memory, do hereby make, publish and declare this to be my last will and testament, hereby revoking all former wills, which may have been made or executed at any time heretofore by me.

'1st. I will that all my just debts, expenses of my last sickness and funeral expenses shall be paid by my hereinafter named executors as soon after by death as practicable.

'2nd. I will, devise and bequeath unto my niece, Mary Upchurch Bentley and to my nephew, Dr. Samuel Earl Upchurch, share and share alike all of the personal property I may own at the time of my death. This shall include all money that I may have deposited in banks, all stocks and bonds of whatever nature, description or denomination, and all other personal property that I may own at the time of my death, whether particularly described herein or not.

'3rd. I nominate and appoint my niece, Mary Upchurch Bentley, and my nephew, Dr. Samuel Earl Upchurch, as executors of this my last will and testament, and do declare that they nor either of them shall be required to make or execute any bond for the performance of their duties arising hereunder nor shall they or either of them be required to make any inventory to any Court or any one else of the property coming into their hands as such executors, nor make any report to any Court or any one else of their proceedings hereunder, this being their authority to act in all matters pertaining to my estate, and in the event that either of my said named executors shall die before I do, then in that event, I nominate the survivor as my said executor under this my last will and testament. * * *'

But Dr. Upchurch, one of the legatees under the will, died on June 5, 1968, a few days before the death of the testatrix, and his untimely death has been to a large degree the cause of this litigation. Dr. Upchurch not being a descendant of testatrix (§ 16, Title 61, Code 1940), the legacy to him lapsed and as to the interest which he would have taken if he had survived testatrix, the testatrix died intestate. Kimbrough v. Dickinson, 247 Ala. 324, 24 So.2d 424; Morgan County Nat. Bank of Decantur v. Nelson, 244 Ala. 374, 13 So.2d 765.

Numerous claims were filed against the estate of Miss Latham, including several substantial claims by the executrix, Mary Upchurch Bentley, and by the executors of the estate of Dr. Upchurch. Some heirs of Miss Latham contested certain of the claims filed by Mary Upchurch Bentley and the executors of the estate of Dr. Upchurch.

Following a hearing at which the testimony was taken ore tenus and many exhibits were introduced, the trial court rendered a decree wherein the joint claim of Mary Upchurch Bentley and the executors of Dr. Upchurch's estate was allowed in the sum of $8,906.78, which sum includes interest.

The trial court further decreed, in part:

'3. That an undivided one-half interest in and to the estate be set apart to the beneficiary and legatee, Mary Upchurch Bentley, according to the terms of the will; that the remaining undividued one-half interest of said estate be set apart for the payment of the claims and of the debts of the estate, cost of administration, taxes and all other indebtedness of said estate.

'4. That the names of the distributees of Mary Della Latham and the interest of each of said distributees in and to that portion of her estate, being a one-half part, to which she died intestate, are as follows: * * *

'5. That the one-half undivided interest of the property of the testatrix that was intestate to be distributed on final settlement among the distributees herein named in the proportions indicated, after the payment of claims and debts of the estate and the cost of administration.

'6. That in the event the intestate property, as herein ascertained, is not sufficient to pay the debts and claims of the estate and cost and fees of administration, then the deficiency shall be supplied from the one-half undivided interest set apart to the legatee, Mary Upchurch Bentley.'

From that decree an appeal was taken to this court by the heirs of Mary Della Latham, deceased, who contested the claims filed by Mary Upchurch Bentley and the executors of the estate of Dr. Upchurch.

Appellants contend that the trial court erred in allowing the claims filed by Mary Upchurch Bentley and the executors of the estate of Dr. Upchurch, some of which claims appellants assert in brief were barred by the statute of limitation of three years.

We cannot review that contention. Submission here was on the record proper. In other words, the...