Mayfield v. Cook

• Decision Date: 13 February 1919
• Docket Number: 3 Div. 372
• Citation: 203 Ala. 49,82 So. 9
• Parties: MAYFIELD v. COOK et al.
• Court: Alabama Supreme Court

82 So. 9

203 Ala. 49

MAYFIELD v. COOK et al.

3 Div. 372

Supreme Court of Alabama

February 13, 1919

Rehearing Denied May 15, 1919

Appeal from Circuit Court, Montgomery County; Gaston Gunter, Judge.

Suit by Eunice H. Mayfield against Marie B. Cook and others. From decree for respondents, complainant appeals. Affirmed.

Mayfield Somerville, and Gardner, JJ., dissenting.

For the former appeal in this cause, considering the ruling on demurrer to the original bill, see Mayfield v. Cook, 77 So. 713, where the substance of the original bill is set out in the statement of the case. Subsequent to the rendition of the opinion by this court in the above case, the bill was amended as follows:

"She amends said bill by adding thereto the following paragraphs:

"A. That by said last will and testament, said J.H. Cook first bequeathed to Edward S. Watts the sum of $5,000, and then bequeathed and devised the rest and residue of his property after payment of his debts and said bequest to said Watts to his wife said Marie Boyd Cook; that no dissent to said will has ever been filed by said Marie Boyd Cook, and she has thereby assented to said bequest to said Watts, and if the personal property of said estate is insufficient to pay the debts of said J.H. Cook and said bequest to said Watts, the real estate left by said J.H. Cook is subject to the payment thereof; that complainant is informed and believes, and so avers, that said personal property is insufficient in value to pay said debts and said bequest to said Watts, and that it will be necessary to sell part of said real estate to pay said debts and said bequest; that a copy of said last will and testament is hereto attached as Exhibit A and made a part hereof.

"B. Pursuant to the opinion rendered by the Supreme Court on January 24, 1918, complainant strikes from her bill as amended all allegations and prayers relating to the real estate left by said Cook except the allegations contained in paragraph A above, and except the mere description of said real estate which is retained only for the purposes set forth in said paragraph A; and she also strikes out all claims to the personal property left by said Cook in excess of what is necessary to pay the debts of said Cook, the costs of administering his estate and said bequest made to said Edward S. Watts.

"She amends the prayer to said bill as amended by striking out all claims to said real estate and personal property which are inconsistent with said decision and opinion of the Supreme Court, and now claims the sum of $5,000, being the amount bequeathed to said Watts, with interest thereon, and prays that the executrix of said will of said Cook may be ordered to pay the same to her out of the personal property left by said J.H. Cook if the same is sufficient, and, if not sufficient, then the said executrix be ordered to sell enough of said real estate to pay the deficiency after exhausting said personal property."

That portion of Exhibit A, being the will of J.H. Cook, here pertinent is as follows:

"Item I. I desire all my just debts to be paid, and in order to pay my debts, my executors hereinafter named are authorized to sell at public or private sale as they may deem best and without any order of court, such portions of my property as may in their judgment be best to sell for that purpose.

"Item II. Because of the long friendship existing between us and for the services which he has rendered me in the past, I hereby give and bequeath to Edward S. Watts of the county of Montgomery, Alabama, the sum of five thousand dollars ($5,000.00).

"Item III. All the rest and residue of my property after the payment of my debts and said bequest to said Edward S. Watts, I bequeath and devise to my beloved wife, Marie Boyd Cook."

The bill as amended was demurred to by respondent Tyson, as administrator of the estate of Edward S. Watts, which demurrers were referred to and adopted by respondent Marie B Cook.

The points raised by demurrer were: First, that the contract was void for want of mutuality of obligation because the appellant was a minor; second, that the testator, J.H. Cook is not shown to have left sufficient personal property to pay his debts and the legacy to Watts; and, fourth, that the legacy to Watts was for services, and therefore not subject to the alleged contract between the parties. Demurrers were also assigned to paragraph A of the amended bill upon the ground that the averments therein are indefinite and uncertain. Decree was rendered sustaining the demurrers, and from this decree the complainant prosecutes this appeal.

Ball & Beckwith, of Montgomery, for appellant.

John R. Tyson and Hill, Hill, Whiting & Thomas, all of Montgomery, for appellees.

PER CURIAM.

Upon consideration of this cause in consultation by the whole court, the majority, consisting of Chief Justice ANDERSON, Associate Justices McCLELLAN, SAYRE, and THOMAS, entertain the view that the assignment of demurrer, taking the point that the bill does not show there was sufficient personalty with which to pay the debts of the estate, was well taken and properly sustained. They are of the opinion that the debts should not be required by a court to be paid out of the real estate in order to leave the personalty free for application to the complainant's alleged contractual rights, and that to so require would be permitting that to be done indirectly which was held on former appeal could not be done directly.

The holding of the majority results in an affirmance of the decree of the court below.

Affirmed.

GARDNER J. (dissenting).

This cause was assigned to the writer, and the following opinion prepared, in which Justices MAYFIELD and SOMERVILLE concur, but upon consideration of the cause in consultation, the same did not meet the approval of the majority of the court. We have thought, however, the questions treated as of sufficient importance to justify an explanation of our view, and therefore adopt the following as our dissenting opinion:

The purpose of the bill in this cause was the enforcement of a contract alleged to have been entered into between the testator, J.H. Cook, and the complainant, whereby it was agreed that for a certain consideration the said J.H. Cook would devise and bequeath to complainant all of his estate.

It was held upon the former appeal that, such contract being oral, and no facts being alleged to bring the agreement within the excepting clause of the statute of frauds, as to the real estate the same was void and unenforceable, but valid and binding as to the personalty. The opinion recognized the superiority of complainant's claim over that of devisee Watts, so far as the personal estate is concerned.

The contract therefore being binding so far as the personal estate was concerned, to somewhat simplify matters we may read the will as providing: First, for the payment of the debts; second, as bequeathing to the complainant all the personalty owned by the testator at the time of his death third,...