Lindsey v. Lindsey

• Decision Date: 23 March 1933
• Docket Number: 5 Div. 123.
• Citation: 226 Ala. 489,147 So. 425
• Parties: LINDSEY v. LINDSEY et al.
• Court: Alabama Supreme Court

147 So. 425

226 Ala. 489

LINDSEY v. LINDSEY et al.

5 Div. 123.

Supreme Court of Alabama

March 23, 1933

Rehearing Denied April 20, 1933.

Appeal from Circuit Court, Chambers County; W. B. Bowling, Judge.

Petition by J. J. Lindsey and others for removal of Ed. B. Lindsey as executor of the estate of J. B. F. Lindsey, deceased. From a judgment of removal, defendant appeals.

Affirmed.

James W. Strother, of Dadeville, for appellant.

Jacob A. Walker and O. P. Lee, both of Opelika, for appellees.

BOULDIN Justice.

This cause originated in an application in the probate court of Chambers county for the removal of Ed. B. Lindsey, as executor of the estate of his father, J. B. F. Lindsey deceased. Code, § 5789. From an order removing said executor an appeal was prosecuted to the circuit court. Code, § 6115 subd. 3. The present appeal is from the judgment of the circuit court affirming the judgment or order of the probate court. Code, § 6116.

The application for removal was filed by residuary legatees under the will of decedent. Coexecutors joined in the application as legatees, not as executors. It was entirely proper for them to join either as legatees or executors, or both; this by express statute. Code, § 5791. This is not a case wherein one executor cannot maintain a suit against another, as defined in Langley v. Langley, 121 Ala. 70, 25 So 707; King v. Shackleford, 6 Ala. 423.

The statutory ground for removal set out in the application is that portion of subdivision 1, section 5789, which reads "* * * when from his conduct or character there is reason to believe that he is not a suitable person to have the charge and control of the estate."

Other features of the application present issues under subdivisions 3 and 4 of the same section.

The petition sets forth in much detail the facts relied upon to show such executor "not a suitable person," etc.

Briefly stated, the charge was to the effect that the decedent had accumulated and for a long time had on deposit on savings account in a bank some $10,000, which constituted substantially all his estate save a farm which was devised to his son, Ed. B. Lindsey, the executor now complained of; that close confidential relations subsisted between father and son; that the son, with fraudulent purpose, induced his father to sign a check filled out by the son for the small sum of $8, payable to the son, and so filled out as to leave space to insert "Thousand" after the word "Eight" in the body of the check, and "000" after the figure "8" in the margin; that, after obtaining his father's signature, the son filled in these words and figures, and thereupon cashed the check for $8,000, which he fraudulently withholds, is wasting, etc.

An alternative charge is: That the check, if signed as it now appears, was obtained by undue influence. It is alleged the father was 81 years old, enfeebled in body and mind; that the son resided in the home with the father, attended to his business, dominated the mind and will of the father; that the check was the expression of the mind and will of the son, not of the testator or donor.

The averments of confidential relations between the donor [who, in the circumstances, is to be regarded in the light of a testator, one making a disposition of his estate in anticipation of death] and the donee, a favored beneficiary among the natural objects of his bounty, together with the alleged activity of the donee in drawing and procuring the execution of the check, with further averments of dominating influence, present a proper issue of undue influence.

Clearly if the executor was guilty either of forgery as charged, or of obtaining the money by undue influence, which, under the will theretofore executed, would have passed to all the children, share and...