Melton v. Melton

• Decision Date: 20 April 1972
• Docket Number: 6 Div. 818
• Parties: Lide O. MELTON, in the Matter of the Estate of Thomas O. Melton, Deceased v. Julia C. MELTON, Ind. and as Executrix, etc.
• Court: Alabama Supreme Court

Page 887

261 So.2d 887

288 Ala. 452

Lide O. MELTON, in the Matter of the Estate of Thomas O. Melton, Deceased v. Julia C. MELTON, Ind. and as Executrix, etc.

6 Div. 818.

Supreme Court of Alabama.

April 20, 1972.

Rehearing Denied June 1, 1972.

Wilder, Crowder & Hampe, Birmingham, for appellant.

Weaver & Herrin, Hare, Wynn, Newell & Newton, Birmingham, for appellee.

COLEMAN, Justice.

A beneficiary under a will appeals from a decree approving final settlement of the executrix.

The testator died in December, 1944. He was survived by his widow and one son. The widow was testator's second wife. The son was by testator's first wife and was forty-six years old when the will was admitted to probate on January 25, 1945.

The testator bequeathed and devised to the widow an undivided one-half interest in all of his property, to be hers in fee simple.

He also bequeathed and devised to the widow, as trustee for the son, an undivided one-half interest in all of his property with full power to mortgage, sell, or transfer said property in any manner whatsoever, the validity of the title in any purchaser or transferee thereof not to depend on the good faith of the trustee. The will further provides that the trustee so manage and control the portion of the estate coming into her hands as trustee as to keep the same intact, to reinvest the proceeds of sale of any of such property in other property and to strive to obtain as much income as practicable from the same with due regard to be given to the reasonable safety of said investments. If, in the event of emergency such as sickness or other causes deemed sufficient by the trustee it should be necessary to sell the trust estate or any part thereof for maintenance and support of the son, then the testator directs the trustee to do so.

The will provides that the trust is to continue so long as the trustee may deem it wise and proper to do so. The trustee is authorized to terminate the trust and surrender the trust estate, or any remaining part thereof, to the son whenever the trustee may deem the son capable of handling same for himself on his own account.

The will provides that should the son die before the date of the death of the widow, then all the property bequeathed to her in trust for the son shall go to the widow to be hers in fee simple.

The testator appoints the widow to be executrix of the will without bond and provides that she shall not be required to make any report to or settlement with any court.

On January 30, 1945, the probate court granted letters testamentary to the widow.

On May 28, 1946, the widow, as executrix, filed petition praying that the probate court fix a fee for her attorney and authorize payment thereof out of the assets of the estate. The court set the petition for hearing on June 11, 1946, and on the day set granted the petition and fixed the fee at $2,200.00.

No further action appears in the records of the probate court until May 23, 1968, on which day the son filed a petition in the probate court praying that the court require the executrix to file an inventory and a report of her acts and actions as executrix and trustee.

On July 29, 1968, the executrix filed in the probate court a petition praying for a final settlement of the estate and that she be authorized to sell for division of the proceeds certain real estate in Florida owned by testator at the time of his death. A number of exhibits are attached to the petition. Exhibit A, hereinafter mentioned, is an agreement dated March 23, 1945, signed by the widow and the son. Other exhibits are semi-annual statements showing receipts and disbursements beginning in 1945 and ending in 1968. The petition and exhibits thereto cover transcript pages 19 through 63.

Other entries and writings appear in the record; to wit, orders of continuance, petition by executrix for final settlement and objections thereto, amendments, affidavits, and letters.

The son filed a motion to remove the estate to the circuit court, in equity, and on December 11, 1968, an order was entered granting the petition to remove.

The executrix filed in the circuit court a petition for final settlement with statement of receipts and disbursements. The son filed an answer. The court set the petition for hearing on August 11, 1969.

As hereinafter mentioned, oral testimony was heard on August 11, 1969.

On December 2, 1969, the attorneys representing the son filed a writing stating that: '. . . we have withdrawn as attorneys for Lide O. Melton in captioned estate and have turned our entire file over to Mr. Melton.'

On December, 8, 1969, the executrix filed a motion that the petition for final settlement be referred to the register, and, on January 19, 1970, after hearing at which executrix and the son were both represented by their respective counsel, the court decreed that the estate be referred to the register for hearing and final settlement.

The register set the petition for hearing before him. Present counsel for the son filed a motion asking for a continuance and the motion for continuance was granted by the register.

On March 24, 1970, counsel for the executrix filed a special defense asserting that as to each and every act that she has done in reference to any property set forth in her final settlement, any and every act which she has done more than twenty years prior to filing the final settlement is presumed to be correct, and that the lapse of twenty years without assertion by the son that the act was improper or incorrect is barred by the prescriptive period of twenty years.

The register granted a further continuance of the hearing to May 8, 1970.

On May 7, 1970, the executrix filed a 'PETITION TO WITHDRAW PAPERS AND ORDERS THEREON,' alleging, among other things, that the will had been admitted to probate on January 4, 1945, and that on January 30, 1945, letters testamentary had been issued to the executrix; that twenty years or more have elapsed since six months after the letters were issued without further action in the cause; that all bequests and legacies provided for in the will have been payable or demandable for more than twenty years; that '. . . petitioner, as Executrix of said estate, has not for more than twenty years made any payment or partial payment or promise of payment on any claim against such estate, or of any bequest, devise or distributive share due from such estate to Lide Melton, and that under Section 376(1), Title 61, Code of Alabama (1958, Recompiled), it is conclusively presumed that final settlement of said estate, all legacies and bequests due by said estate have been paid to the persons entitled thereto.'

Also on May 7, 1970, the executrix filed a petition for final settlement 'UNDER SECTION 376(1), TITLE 61,' of the Code Recompiled 1958. The petition contains the same averments made in the petition to withdraw papers filed on May 7, 1970, as set out above. Attached to the petition as exhibits are two affidavits, one of which is made by counsel for executrix. The other affidavit is dated May 5, 1970, and the affiant is J. Haran Lowe.

Affiant Lowe states that he is an attorney at law; that he represented the son, Lide O. Melton, in the estate of his father, the testator; that under the will, Julia C. Melton was made executrix and was represented by Francis Hare; that the controversy consisted largely of the fact that the son desired to contest the will unless a compromise agreement could be effected with Julia C. Melton by which she would disclaim the provision in the will under which she would inherit the son's share upon his death; that the son objected to her continuing to act as trustee for him; that such an agreement was made between affiant representing the son and Francis Hare representing the executrix. The concluding paragraphs of the affidavit recite as follows:

'Mrs. Melton and Lide Melton were the sole beneficiaries. The personal estate was distributed in the years 1945 and 1946. Mrs. Melton disclaimed any right to inherit the share of Lide Melton in the event he died first, and it was agreed between Mrs. Melton and Lide Melton that the trust would be terminated as of June 1, 1946. The trust was terminated on that date, and on June 13, 1946 Mr. Hare's fee for representing the estate was paid. We both closed our files, except for an arrangement under which Mrs. Melton, not as trustee but as manager, should continue to manage the real estate, which included an orange grove in Florida and some rental property in Homewood.

'The life insurance was collected, the indebtedness to the bank paid and the proceeds correctly divided, and I have seen Lide Melton's receipt in full. The bank account was a joint survivor account that did not constitute a part of the estate, but Mrs. Melton agreed to pay, and did pay, certain bills that would ordinarily be charged to the estate, including the funeral and cemetery bills.

'As stated, all the personal property was correctly and satisfactorily distributed and accepted by my client under my supervision, and the compromise agreement was intelligently made, understood and carried out.'

At this point, reference will be made to Exhibit A mentioned above which is an instrument dated March 23, 1945, and signed by 'Julia C. Melton' and 'Lide O. Melton.' The instrument is signed by 'Francis H. Hare' and 'J. Haran Lowe' as witnesses. The terms of the agreement, in pertinent part, are to effect as follows:

Julia C. Melton determines that the trust under the will shall be terminated not later than June 1, 1946, subject to the following conditions:

During her life, Julia C. Melton shall have authority to manage the property left by testator at his death including specifically the real estate in Homewood, Alabama, and the orange grove in Florida; she shall have authority as manager to collect and disburse revenues and retain from the revenue produced by the Florida property a sufficient sum in her discretion as working capital....