Little v. Ennis

• Decision Date: 12 January 1922
• Docket Number: 2 Div. 773.
• Citation: 207 Ala. 111,92 So. 167
• Parties: LITTLE v. ENNIS ET AL.
• Court: Alabama Supreme Court

92 So. 167

207 Ala. 111

LITTLE v. ENNIS ET AL.

2 Div. 773.

Supreme Court of Alabama

January 12, 1922

Appeal from Circuit Court, Sumpter County; R.I. Jones, Judge.

Bill by W. L. and J. B. Ennis, as executors of the last will and testament of Robert Ennis, deceased, against Lucille E Little and others, to interpret the will and to ascertain especially if certain items ought to be treated as advancements to Lucille E. Little and deducted from her portion of the estate, and to remove the administration from the probate to the circuit court. From a decree construing the will, and charging Lucille Little with advancements, she appeals. Affirmed in part, and reversed, rendered, and remanded.

Under Code 1907, § 2686, as amended by Acts 1919, p. 566, the executors may be compelled to make settlement in court though relieved from the duty of so doing by the will.

The will referred to is as follows:

"Item Second. I give, devise and bequeath to my wife Annie E Ennis, absolutely and in fee simple the following real and personal property, viz.: My undivided interest in the 'Artesian Hotel' property in the town of Livingston, Sumter county, Alabama, including the offices and stables on said hotel property lots; also my undivided interest in the 'Warehouse' property in said town of Livingston. Also all of my personal property of every kind and description, including my stock of goods, accounts, notes, etc., except the bonds and stocks herein after mentioned in this will.

"3. Item Third. I give, devise and bequeath to my wife for and during the period of her live, all of the balance of the real estate and all of the bonds of the United States government, the Tennessee, the mortgage bonds of the Lake Shero and Michigan Southern Railroad Company and all other bonds, and all the bank stocks that I may own at the time of my death. I give and bequeath to her absolutely the rents, income, interest and dividends which may accrue during her life on said real estate and bonds and stocks.

"4. Item Fourth. At the death of my wife, I give, devise and bequeath to my children who may be living at the time of her death, for and during their lives and to the issue of such of my children as may be dead at that time, for and during the lives of my said living children, or the survivors of them, the real estate, bonds and stocks which I have devised and bequeathed in item three (3) of this will to my wife for her life. After the death of my wife, if any of my children should die leaving issue such issue shall take as though such child had died leaving issue before the death of my wife. The living children and the living issue of any deceased child or children herein provided for shall appropriate and use only the rents, income, interest and dividend of the property devised and bequeathed in this item, but shall not appropriate or use the corpus of said property. Should any of my children die without issue or should the issue of any deceased child die, the share of the rents, income, interest and dividends which such child or issue of such deceased child would have taken if living, shall pass under this will and be governed by its provision, to the surviving child or children, and to the issue of any deceased child or children. The issue of any deceased child shall take the same share that the child would have taken if living.

"5. Item Fifth. After the death of my wife and after the death of all of my children, I give, devise and bequeath, absolutely in fee simple, all of my estate, real, personal and mixed, that may be on hand at the death of the last survivor of them to them then living of my children, said issue to share in my estate per stirpes.

"6. Item Sixth. By the provision which I have made in item three (3), four (4), five (5) of this will, it is my purpose and intention to give my wife a life estate in the property specified in said items, and at her death to give my children who may be then living and the living issue of my deceased children, or the survivor of them, and at the death of last surviving child, or at the death of my wife, if she should survive all my children, to the then living issue of any deceased children, absolutely and in fee simple. The issue of deceased children to take per stirpes.

"7. Item Seventh. In order to preserve the corpus in my estate for the devises and legatees under the fifth (5) item of the will, I desire that, if, at any time prior to the death of my wife or the death of my last surviving child, any of the bonds referred to in item three (3) of this will shall be called in or if the bank referred to in said item shall cease to do business, the money derived from the redemption or payment or payment of said bonds and stocks or either of them, shall be re-invested in other good securities, such as may be suggested by the Union Trust Company of New York City if that Company shall then be existing. If that company is not then in existence the money shall be re-invested as may be advised by some prudent moneyed institution.

"Item Eight. I hereby appoint my wife Annie E. Ennis as executrix of this will, and as testamentary guardian for my children during their minority, and I hereby expressly relieve and exempt her from having any settlements or taking any steps or proceedings of any kind in any court in reference to my estate or the guardianship of my children after the probate of this will. I desire her to have full, entire and complete control of my estate and of my children and manage both as she sees fit except in so far as she is restrained by the provisions of this will."

The wife of the testator died in the lifetime of the testator, and he added a codicil to his will appointing W. L. Ennis and J. B. Ennis as executors, and adding other matters not here material.

The following are the exhibits:

Exhibit B.

Mobile, Ala., Nov. 16th, 1903.

For and in consideration of Robert W. Ennis having given us five thousand (5,000) dollars in cash we agree that this is to be a receipt for said amount to him to be deducted from our share of his estate after his death. We further agree to pay to Robert W. Ennis and Annie E. Ennis, his wife, one hundred and twenty (120) per annum, payable in sums of sixty (60)

dollars, semiannually, the first days of July and January of each year, so long as both or either of them live; the first payment of sixty (60) dollars to be the first day of July, 1904, the payments on this to cease after the death of said Robert W. Ennis and Annie E. Ennis.

Lucille E. Little.

J. R. Little.

9 years 295 day. Int. 1180.00. Interest paid in full up to 1st of July, 1906. Robt. W. Ennis, January 9, 1905. Interest...