Montgomery v. Montgomery

• Decision Date: 21 April 1938
• Docket Number: 5 Div. 276.
• Citation: 236 Ala. 161,181 So. 92
• Parties: MONTGOMERY ET AL. v. MONTGOMERY.
• Court: Alabama Supreme Court

181 So. 92

236 Ala. 161

MONTGOMERY ET AL. v. MONTGOMERY.

5 Div. 276.

Supreme Court of Alabama

April 21, 1938

Rehearing Denied May 19, 1938.

Appeal from Circuit Court, Lee County; W. B. Bowling, Judge.

Bill for a declaratory judgment by Louis Walton Montgomery, a non compos mentis, by his guardian, Lillian M. Montgomery against Jane Montgomery, Sallie K. Alsobrook, and others. From a decree for complainant, the named respondents appeal.

Reversed and remanded.

A "base fee" is an estate or fee which has a qualification subjoined thereto and which must be determined whenever the qualification annexed to it is at an end.

The bill alleges in substance as follows:

Thomas L. Penn executed his will January 5, 1911, and died in May 1911. The will was duly probated in June, 1911. Under the terms of the will, the estate vested equally in complainant and his brother, L. Penn Montgomery, subject to the terms and conditions of the will. Pursuant to the terms of said will complainant and his said brother, about November 24, 1913 agreed upon a division of the estate, and thereupon L. Penn Montgomery and his wife, Sallie K. Montgomery, executed and delivered to complainant their deed conveying that part of the estate chosen by complainant, which deed was duly recorded, and complainant entered into the possession of the property so conveyed, is now and has been since said time, in possession thereof. At the same time L. Penn Montgomery went into possession of the remainder of the property of the estate chosen by him remaining in possession until his death and thereupon his daughter, Jane Montgomery, went into possession and has so remained since said time. L. Penn Montgomery died, leaving surviving him said daughter, Jane Montgomery, and his widow, Sallie K. Montgomery, who afterwards married Alsobrook. Complainant was married to Lillian Middleton (who is his guardian), and has four children, whose names are set out, none of whom are married. Alice Young, the niece of Thomas L. Penn, Monroe Gorham, and Albert Gorham, named in item 6 of his will, are all dead, and the heirs, distributees, and parties who might claim by and through said niece are listed and made parties respondent to the bill. The will of said Thomas L. Penn was construed by the Supreme Court of Alabama in its decision rendered November 7, 1914, as reported in Montgomery v. Wilson, 189 Ala. 209, 66 So. 503, and some question has arisen as to the extent of complainant's title and rights in the property described in said deed from L. Penn Montgomery and wife, and said Jane Montgomery and Sallie K. Alsobrook claim some title and interest in said property.

The bill is filed under the Uniform Declaratory Judgments Act, Gen.Acts 1935, p. 777, and prays a judgment declaring and adjudicating (1) the validity, efficacy, and effect of the agreement for division of the Penn estate by and between complainant and his brother; (2) the validity, efficacy, and effect of the deed of L. Penn Montgomery to complainant; (3) the right, title, and interest of complainant in and to the property described in said deed; (4) the right, title, and interest, if any, of Jane Montgomery and Sallie K. Alsobrook in and to the property described in said deed, and whether same is vested or contingent; (5) that neither of the parties named and designated in item 6 of the will, nor their heirs, children, or descendants, claiming by and through them, have or can ever have any right, title, or interest in and to the property described in said deed, under item 6 of the will or other terms or provisions of the will; and (6) for general relief.

Respondent Jane Montgomery answered, claiming that upon the death of her father she took under the will of Thomas L. Penn a vested contingent remainder, subject to be defeated if complainant died leaving a child or children or other lineal descendant. Respondent Sallie K. Alsobrook answered, claiming that she would, in event of the death of her daughter, Jane Montgomery, without leaving a child or children or other lineal descendant, inherit whatever interest said Jane Montgomery might have. Both said answers deny any right in the parties mentioned in item 6 of the will, their heirs, distributees, or parties claiming through them.

Decree pro confesso went against the parties respondent other than Jane Montgomery and Sallie K. Alsobrook, and said parties; after notice, failed to unite in the appeal.

The will of Thomas L. Penn is, in pertinent part, as follows:

"3. The remainder of my entire estate, after paying my funeral expenses and debts, I give and bequeath to my two grandchildren, L. Penn Montgomery and Louis Walton Montgomery, share and share alike, to be delivered to and held by them in the manner and at the time and upon the conditions hereinafter named.

"4. I will and direct that all my property of every kind and description of which I may die seised or possessed be held and kept together, and managed and controlled by my executors until April 23, 1916, during which time the net income arising therefrom shall be equally divided and paid annually to my two grandsons, to wit, L. Penn Montgomery and Louis Walton Montgomery.

"5. In the event that either of my said grandsons above mentioned should die and leave no child or children or other lineal descendants surviving him, I give the legacy intended for such grandson so dying to the other of them, to be held and used by him during his natural life, with the remainder over to his child or children or other lineal descendants, should he leave such.

"6. In the event that both of my said grandsons above mentioned should die and leave no child or children or other lineal descendants surviving them, I give the legacies intended to both of my said grandsons so dying to the children of my niece Alice Young, wife of James Young, now residing at Woodville, Green County, Georgia, and to the children of her full brothers, Albert Gorham and Monroe Gorham, and the child or children of any other full brother of said Alice Young, to be divided among said children as follows: One-half of my estate to the children of said Alice Young, share and share alike, and the other half of my estate, to be divided share and share alike, among the children of the brothers of said Alice Young."

After nominating L. Penn Montgomery and Louis Walton Montgomery as executors, item 7 of the will proceeds:

"But I direct that as soon as practicable after my death they make two full and complete inventories of my estate, one to each of said executors, and that they make annual settlement between themselves until April 23, 1916, at which time they are directed to divide between themselves all the property then held by them, share and share alike. In making such division, I direct that my real estate be appraised and divided in kind, as near as practicable into two equal parts according to value, and that each of my said grandchildren receive one of said parts, and in case one part should exceed in value the other part, the one receiving the most valuable part shall pay the difference to the other."

By the final decree it is adjudged (1) that the agreement between L. Penn Montgomery and Louis Walton Montgomery, together with the division and deed made pursuant thereto, are valid and binding upon the parties, their heirs and assigns and those claiming by and through them; (2) that complainant has a present vested fee-simple title in and to all of the property of the estate of Thomas L. Penn, deceased, described in said deed of L. Penn Montgomery and wife; (3) that neither Jane Montgomery nor Sallie K. Alsobrook has any present, vested, or contingent right, title, interest, or claim in or to any of the property, under and by virtue of the will, described in said deed; and (4) that none of the parties named and designated in item 6 of the will, their heirs, children, or descendants, nor any one claiming by or through them, have or can ever have any right, title, interest, or claim in said property.

R. C. Smith, of Opelika, for appellants.

Denson & Denson and L. J. Tyner, all of Opelika, for appellee.

THOMAS Justice.

This appeal involves the construction of certain sections of a will.

A declaratory judgment under the act is invoked to that end. General Acts of 1935, p. 777; Bochard on Declaratory Judgments, pp. 64, 65, 512 et seq.; Teal et al. v Mixon, 233 Ala. 23, 169 So. 477. Since it is a matter of public as well as private interest that certainty prevail as to the ownership and possession of property, where there are adverse claimants, a justiciable question, an actual controversy is presented under the act. Louis Walton Montgomery, Non Compos Mentis, by his Guardian ad litem, v....