McGehee v. Smith
| Decision Date | 29 June 1946 |
| Docket Number | 8 Div. 336. |
| Citation | 248 Ala. 174,26 So.2d 861 |
| Parties | McGEHEE et al. v. SMITH. |
| Court | Alabama Supreme Court |
W. C. Rayburn, of Guntersville, for appellants.
Claud D. Scruggs, of Guntersville, for appellee, executor.
T Harvey Wright, of Guntersville, guardian ad litem for Howard McGehee.
The appeal is from a decree of the Circuit Court of Marshall County, sitting in equity, wherein the will of H. H. McGehee deceased, is construed.
The bill was filed by appellee, as executor of the last will and testament of the said H. H. McGehee, against appellants and others to remove the administration of the estate from the probate court to the equity court and to construe the will.
At the time of his death, H. H. McGehee was survived by his widow Evie McGehee, and their two children, Howard McGehee, a minor, and Dorothy McGehee Rigsby. He was also survived by seven children of a former marriage and by five grandchildren, children of two deceased daughters of the former marriage. They constitute all the heirs at law of the said H. H. McGehee, deceased. All were named as devisees or legatees under the will and all were made parties respondent to the bill filed by the executor. Appellants are the children of the former marriage.
Upon allegations in the bill under oath that in the opinion of the executor the estate could be better administered in the equity court than in the probate court, the administration was removed to the equity court of Marshall County. This procedure is not here questioned.
After providing for payment of debts, funeral expenses and a monument, the testator in paragraph 3 of his will devised his home, located in Gunterville, Alabama, to his widow, Evie McGehee, and to his children, Dorothy McGehee (Rigsby) and Howard McGehee, for their joint use so long as his widow remained unmarried and so long as she lives, with the provision that the fee simple title thereto is to vest in the named children upon the death or remarriage of their mother Evie McGehee. The same provision is made with reference to household and kitchen furniture. In paragraphs 4 and 5 of the will testator left the sum of $25.00 to each of five grandchildren. Testator in the sixth paragraph of the will gives his car, gun and gold watch to his son Howard McGehee.
It is the seventh paragraph of the will that the executor sought to have the court construe. It is as follows:
'All the rest, residue and remainder of my Estate, real personal, or mixed, whatsoever (sic) situate of which I may die seized or possessed or to which I may be entitled at the time of my decease, I direct that the same be converted into cash by my Executor hereinafter named, and I direct that he use the same in educating my son, Howard McGehee, giving him a reasonable education, and after this has been done, I direct that any balance then in the hands of my Executor shall be divided equally between the said Howard McGehee, Dorothy McGehee, Willie McGehee, Daisy Smith, Elizabeth Sims, Hulett McGehee, Lena Vest, Dicie Franks and Shirley McGehee, share and share alike, and if for any reason my son, Howard McGehee, will not attend school and receive such education, then upon a judicial ascertainment of that fact by the Court, such balance shall be paid said residuary legatee as if he had completed his education, but my executor will retain in such event the interest of Howard McGehee and not pay it to him until he is twenty-one years of age but shall invest and preserve it for his benefit if he so fails to attend college and completes his education.'
It appears from the allegations of the bill that Howard McGehee at the time the bill was filed was only sixteen years of age with at least two years of high school work uncompleted; that he was without funds and had requested the executor of his father's estate to use the estate funds for the purpose of defraying his expenses connected with the completion of his high school work and to that end would expect the executor to pay his mother (Evie McGehee) for room and board, tuition, supplies, books and clothing; that some of the respondents to the bill (devisees in remainder) were in disagreement as to the uses to which the said estate funds could be put, some contending that such funds could not be used for the purpose of paying the cost of the said Howard McGehee's high school education, while others contended that such funds could not be used for the purpose of giving the said Howard McGehee a college education or any education after he finished high school.
The specific prayer of the bill is as follows:
There was answer filed by the widow, Evie McGehee, and answer and cross-bill by the guardian ad litem of Howard McGehee, but with them we are not here concerned.
Appellants who, as before pointed out, were among the devisees in remainder and who are the children of the said H. H. McGehee by a former wife, answered the bill wherein they contend: (1) That the executor is without authority to use the estate funds for the purpose of paying for room and board for Howard McGehee while he is living with his mother and attending high school and that such funds cannot be used for the purpose of paying his tuition and buying supplies, books and clothing while in high school; (2) that the executor is not authorized by the will to pay for any part of said Howard McGehee's college education or further education after he has completed high school in that a high school education is a reasonable education within the meaning of paragraph 7 of the will; (3) that after Howard McGehee completes his high...
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