Love v. Rennie, 7 Div. 18

• Decision Date: 26 October 1950
• Docket Number: 7 Div. 18
• Citation: 254 Ala. 382,48 So.2d 458
• Parties: LOVE et al. v. RENNIE et al.
• Court: Alabama Supreme Court

Page 458

48 So.2d 458

254 Ala. 382

LOVE et al. v. RENNIE et al.

7 Div. 18.

Supreme Court of Alabama.

Oct. 26, 1950.

Hugh A. Locke, of Birmingham and W. T. Starnes, of Pell City, for appellants.

D. G. Ewing, of Birmingham, Frank B. Embry, of Pell City, and T. Eric Embry, of Birmingham, for appellees.

LAWSON, Justice.

This is an appeal from a decree overruling a demurrer to a bill in equity.

On January 22, 1946, Thomas L. Rennie executed a will wherein he 'bequeathed' to his wife, Kathleen L. Rennie, all his estate, 'real, personal and mixed.' The will also contained clauses revoking all former wills and appointing his wife as executrix.

Thomas L. Rennie and his wife, Kathleen, both died on May 7, 1948. No children survived. It appears that they died in a common disaster. According to the averments of the bill, the wife, Kathleen L. Rennie, died 'contemporaneously with or prior to the death of said Thomas L. Rennie.'

Some time after the death of Thomas L. Rennie, the exact time not appearing, Mrs. Dollie Love, the mother of Kathleen L. Rennie, filed the aforementioned will of Thomas L. Rennie in the probate court of St. Clair County, together with her petition praying that the said will be admitted to probate as the last will and testament of Thomas L. Rennie, deceased.

After the will of Thomas L. Rennie was filed for probate, this proceeding was instituted.

The complainants, T. H. Rennie and Nellie Rennie, are the father and mother of Thomas L. Rennie. It is alleged that the complainants are the 'sole heirs and next of kin and sole distributees of the estate of Thomas L. Rennie, deceased,' T. H. Rennie died after the appeal was taken but before submission here, and as to him the cause has been revived in the name of Lois Rennie Terry, in her capacity as executrix and trustee of the estate of T. H. Rennie, and in her individual capacity.

The respondents are the mother, stepfather, and half-brothers and half-sisters of Kathleen L. Rennie, deceased. It is alleged that respondents, other than E. L. Love, Sr., the stepfather, are 'the sole heirs and next of kin and distributees' of the estate of Kathleen L. Rennie, deceased.

This proceeding stems from the fact that complainants claim that as the heirs at law and next of kin of Thomas L. Rennie, deceased, they own and are entitled to all his estate, subject to the payment of debts, in that Kathleen L. Rennie, the sole beneficiary under the will, died contemporaneously with or prior to the death of Thomas L. Rennie, and therefore took nothing under the will. On the other hand it appears from the allegations of the bill that respondents contend that under the will Kathleen L. Rennie inherited all the estate of her husband, Thomas L. Rennie, deceased, and that as the heirs at law and next of kin of Kathleen L. Rennie, the respondents, other than the stepfather, E. L. Love, Sr., own and are entitled to all the estate of Thomas L. Rennie, deceased, subject to debts.

Aside from the matters alluded to above, the bill shows that Thomas L. Rennie, at the time of his death, was possessed of considerable property, real and personal. The property is listed. The debts of the said Thomas L. Rennie are itemized. It clearly appears from the averments of the bill that his estate is solvent.

A few days before his death, Thomas L. Rennie purchased, under a conditional sales contract, a new 1949 Lincoln automobile for the sum of $3,200. He paid $1,600 in cash. The remainder of the purchase price was to be paid in monthly installments over a period of eighteen months. The first installment became due on June 10, 1948. The seller assigned the conditional sales contract to the People's Discount Company, Inc., of Anniston, which concern, on June 10, 1948, the day on which the first installment became due, transferred and assigned the said contract to the respondent, E. L. Love, Sr., the stepfather of Kathleen L. Rennie. It is alleged that in this transaction E. L. Love, Sr., was acting on behalf of his wife, the respondent, Mrs. Dollie Love, the mother of Kathleen L. Rennie.

It is alleged that Thomas L. Rennie at the time of his death owned a considerable amount of silverware. It is averred that respondent, Mrs. Dollie Love, has taken possession of the silverware and claims to own it.

The averments upon which the equity of the bill depends to a large measure are contained in paragraphs 4 and 5.

Paragraph 4 reads as follows: 'The said Kathleen L. Rennie, deceased, was named sole devisee or legatee of all of the property of said Thomas L. Rennie, deceased, in the said Last Will and Testament, or that paper writing purporting to be the said Last Will and Testament, of said Thomas L. Rennie, deceased, and said Kathleen L. Rennie is named and designated as the sole executrix of said Last Will and Testament or paper writing purporting to be said Last Will and Testament, but plaintiffs allege that the said Last Will and Testament is either invalid or of no effect, or is ineffective, or is inoperative to pass, convey, devise, or bequeath, any property to said Kathleen L. Rennie, deceased, or to her heirs or next of kin for the reason that the sole devisee and legatee named therein did not survive the said Thomas L. Rennie, deceased, and all of the said property of, and owned by, the said Thomas L. Rennie, deceased, including real, personal and mixed property and choses in action and equities at the time of his death, descended to, or became the property of, the plaintiffs in this cause, subject only to the payments of the debts of said Thomas L. Rennie, deceased, and to the rights of the creditors of the said Thomas L. Rennie, and none of said property, either real, personal or mixed owned by the said Thomas L. Rennie, deceased, at the time of his death, including the equity in said Lincoln Automobile, descended to or became the property of the said Kathleen L. Rennie or any of her heirs or next to kin or distributees of her estate.'

The averments of paragraph 5 not alluded to heretofore are as follows: '* * * The said defendants, exclusive of the defendant E. L. Love are now claiming to own all of said property owned by the said Thomas L. Rennie, deceased, at the time of his death, and have been attempting and endeavoring to obtain possession of said property for their own use and benefit and unless they are prevented from so doing, the plaintiffs will suffer and sustain substantial and irreparable financial loss and will incur the risk of losing a large portion of said property, to which they are justly and legally entitled, unless the said defendants, exclusive of the defendant E. L. Love, is prevented by a decree or judgment of this court from obtaining possession of said property and of disposing of same. * * * The plaintiffs allege that the paper writing purporting to be the Last Will and Testament of the said Thomas L. Rennie, deceased, has not been probated and should not be probated for the reason, among other things, that the court costs of and expenses of probating said instrument or said Last Will and Testament would be a needless and useless expense to the estate of the said Thomas L. Rennie, deceased, or to his heirs and next of kin, and while the same is inoperative, as a matter of law, to pass any of said property of said Thomas L. Rennie, deceased, the probating of said paper writing would create much confusion and uncertainty and would create a cloud on the property of said Thomas L. Rennie, deceased, and the probating of said paper writing would not terminate or put an end to said controversy now existing between plaintiffs and defendants named herein and further proceedings and litigation, irrespective of the probating of said paper writing, would be necessary to settle the said controversy existing between the parties to this cause; and the plaintiffs aver that they have no complete and adequate remedy at law to settle the matters and controversy now existing between the parties to this cause, but, on the contrary, the plaintiffs will or are likely to, suffer substantial, permanent, and irreparable damage and financial loss unless the relief hereinafter prayed for is granted to them; and plaintiffs contend and allege that this court should construe this will and determine and construe the respective rights of the respective parties to this cause. * * * The plaintiffs allege that there is now existing an actual controversy between the plaintiffs and said defendants upon which substantial property rights depend.'

The bill prays (1) that a preliminary order be issued staying all proceedings to probate the will of Thomas L. Rennie, deceased; (2) that pending final hearing, a temporary injunction be issued enjoining and restraining the respondents (a) from proceeding to probate the said will, (b) from taking steps to have any person appointed executor or executrix thereof, or as personal representative of the estate of Thomas L. Rennie, deceased, or as administrator with the will annexed, (c) from taking possession of or disposing of any property owned by the said Thomas L. Rennie at the time of his death.

The bill further prays that upon a final hearing the court render a declaratory judgment declaring:

1. That the paper writing purporting to be the last will and testament of Thomas L. Rennie, deceased, is invalid or that it is 'inoperative and ineffective to pass, transfer or convey, devise or bequeath any of the property, * * * held by the said Thomas L. Rennie, deceased, at the time of his death.'

2. That Kathleen L. Rennie, deceased, 'did not take anything, or become the owner of any property of any kind, owned by the said Thomas L. Rennie, deceased, at the time of his death, either under the laws of this state or under said paper writing purporting to be the last will and testament of the said Thomas L. Rennie, deceased.'

3. That the heirs and next of kin of Kathleen L. Rennie, deceased, and those entitled to share in the distribution of her...