Morgan County Nat. Bank of Decatur v. Nelson

• Decision Date: 13 May 1943
• Docket Number: 8 Div. 217.
• Citation: 13 So.2d 765,244 Ala. 374
• Parties: MORGAN COUNTY NAT. BANK OF DECATUR v. NELSON et al.
• Court: Alabama Supreme Court

13 So.2d 765

244 Ala. 374

MORGAN COUNTY NAT. BANK OF DECATUR v. NELSON et al.

8 Div. 217.

Supreme Court of Alabama

May 13, 1943

Rehearing Denied May 27, 1943.

Eyster & Eyster, of Decatur, for appellant.

Ben L. Britnell, of Decatur, for appellees.

FOSTER Justice.

This is a suit filed by J.L. Nelson, the trustee acting under a clause in the will of Lillian Ray Nelson (appointed by the court) and by May Nelson as the beneficiary of the trust, seeking a construction of the will in so far as it pertains to the trust.

In short, the will provides, after the payment of the debts (which are all said to be paid), that the residue of it be bequeathed as follows:

(a) 1/3 thereof to her brother-in-law J.C.F. Nelson.

(b) 1/3 to another brother-in-law William W. Nelson.

(c) " 1/3 thereof in trust to J.C.F. Nelson to be used for the support, maintenance and benefit of my sister-in-law May Nelson. Any part of the property given in trust to the said J.C.F. Nelson undisposed of at the time of the death of the said May Nelson, I give, devise and bequeath share and share alike to my brothers-in-law J.C.F. Nelson and William W Nelson."

The will was executed November 27, 1929, and testatrix died November 26, 1939, and it has been duly probated, with appellant named as executor. The administration was removed into equity. Testatrix left no heirs at law or distributees nor other person capable of inheriting from her. The said J.C.F. Nelson and William W. Nelson both died before she did. She died seized and possessed of much real and personal property. J.L. Nelson has been appointed trustee by the circuit court, in equity, to operate under clause (c), supra, of the will, upon the application of May Nelson, the beneficiary there named. The executor has given notice of an escheat as provided by law, section 25 et seq., Title 16, Code of 1940, and no one has asserted a claim to be next of kin to testatrix, nor set up any right as such to the estate, although two years have expired since said notice was given.

The bill asserts that all the property devised and bequeathed under clauses (a) and (b), supra, will escheat to the State.

The bill, in so far as here pertinent, contains the following prayer: "And that this court will render a declaratory decree finally construing said will of the said Lillian Ray Nelson, deceased; also that the court construe sub-division (c) of Item 2 of said will which is fully set forth in paragraph 2 of this bill of complaint and will define, enumerate and adjudicate and describe whether or not said legacy is a vested legacy in May Nelson or whether it is a contingent legacy and whether or not May Nelson has full power and authority under the terms of said will to demand and receive directly from the defendant executor the full amount of the legacy devised and bequeathed under sub-division (c) of Item 2, of said will, and whether or not the legal title to said legacy vests in the said May Nelson, and whether or not she (has) power and authority to make a full and complete disposition of said legacy, and if not, upon what terms and conditions and with what restrictions shall disposition of said legacy be made, and whether or not the complainant trustee should be required to maintain his status as trustee by appointment of this court or should he be allowed by immediate order of this court to make a final settlement of said trusteeship."

The only party respondent is the appellant as executor of the will. He filed demurrers, by which he seeks to have certain questions determined by the court. The demurrer was overruled. It is important to the executor that the decree settle authoritatively certain matters as therein set out so as to protect him in the discharge of his duties as such. In order to accomplish that purpose, appellant, by demurrer, contends that there is an absence of necessary parties. (1) That the heirs at law and distributees of J.C.F. Nelson and William W. Nelson are necessary parties, and that (2) there should be made a party some authoritative representative of the State of Alabama.

In the further progress of this cause, we think the proper procedure respecting the State is for the court to cause notice to be given the Governor, see sections 73, 292, Title 7, Code of 1940, and the Attorney General (see section 229, Title 55, Code of 1940), so as to authorize them to cause an intervention to be made on behalf of the State, if they see fit to do so. But while it would be desirable for the State to do so, there is no way to make it a party defendant. Section 14, Constitution.

The bill, as we have observed, was filed by the trustee appointed to administer the trust under clause (c), and by the only living beneficiary under that trust.

We take it to be an established principle that in such a suit in equity all persons who are shown by the bill to be directly interested in the questions sought to be settled by the decree are necessary parties. If the court is asked to declare a legal status affecting such interests, they should be present or duly represented. Sometimes the bill makes allegations of fact which if true exclude any interest. Gravlee v. Lamkin, 120 Ala. 210, 24 So. 756. Upon the basis of those facts persons there shown not to be interested are not necessary parties in litigation to settle controversies between others who are made parties. A bill is not demurrable on account of the absence of persons as parties, if it is apparent from its allegations that they have no interest, and no relief is sought as to them. Arnett v. Willoughby, 190 Ala. 530(1), 67 So. 426.

The bill does not allege that the deceased devisees, J.C.F. Nelson and William W. Nelson, left heirs or distributees who could be affected by the decree. But if it should be treated on demurrer as though there were in existence such persons, yet its allegations as to clauses (a) and (b), if true, lead to the conclusion that those devises necessarily lapsed, because both devisees died before the death of the testatrix, with no provision for that contingency in the will, and not being under the influence of what is now section 16, Title 61, Code of 1940. Little v. Ennis, 207 Ala. 111, 92 So. 167; Caldwell v. Caldwell, 204 Ala. 161, 85 So. 493; Johnson v. Holifield, 82 Ala. 123, 2 So. 753; Crawford v. Carlisle, 206 Ala. 379(5), 89 So. 565.

It therefore shows on its face that if any such supposed persons exist, they have no interest in the subject matter of the will. True, those facts and legal results may be contested, and a decree here would not be binding on any such persons who may be in existence. But we construe a bill by its allegations, as to the necessity of other parties. If there are such persons, it might be desirable to seek relief against them also, and have them brought in as parties either to the bill by amendment, or, if not, by a cross-bill at the instance of the executor who is here complaining of their absence.

There is no doubt under our authorities that when J.C.F. Nelson and William W. Nelson each died prior to the death of testatrix, their devises under (a) and (b), supra, lapsed and would have gone to the next of kin of testatrix, if she had had such, and they did not survive to the other devisees as on the death of a joint tenant. Bendall's Distributees v. Bendall's Adm'r, 24 Ala. 295(8), 60 Am.Dec. 469; Hamlet v. Johnson, 26 Ala. 557; see section 19, Title 47, Code of 1940, abolishing survivorship between joint tenants. Those authorities are, as here, with respect to tenants in common, not to joint tenants as in Lockhart v. Vandyke, 97 Va. 356, 33 S.E. 613; Hoke v. Hoke, 12 W.Va. 427.

And since testatrix died without further devising or bequeathing those shares, and left no kin or husband capable of inheriting, they escheated to the State of Alabama, Section 25, Title 16, Code of 1940.

That disposes of clauses (a) and (b) of the will in such manner as that the next of kin of those devisees are not necessary parties in the light of the allegations of the bill, respecting that feature of the will.

Appellant alleges in brief that after the execution of the will testatrix became a non compos mentis which condition continued to her death, and while she was so affected both devisees in (a) and (b), supra, died, so that she was not thereafter competent to make other disposition of those shares.

We are asked to consider the fact that a lapse on account of such death gives testator, if of sound mind, an opportunity to make a new devise; otherwise it passes as in case of intestacy. It is therefore argued that when testator is incompetent to act after the death of the devisee, the court should step in and award it to the heirs of the deceased devisee. Any such act of the court would make a will for her. The court cannot say what would have been the wish of testatrix had she had a chance to express it. There is no law cited to support this theory, and we cannot accept it.

We now look to subsection (c) of the will and its effect on the question argued. A proper construction of it in respect to J.C.F. Nelson and William W. Nelson is that they are given a remainder in what is undisposed of after the death of May Nelson. The property is to be used for the support, maintenance and benefit of May Nelson, and at her death what is undisposed of is given those persons. They are devisees in remainder, but none the less are they devisees as of the date of the death of testatrix under the terms of the will. The lapse of a devise because of the death of the devisee before that of testator is not affected by the question of whether the devise by its terms has possessory operation in presenti or in remainder. Carter v. Balfour's Adm'r, 19 Ala. 814(7); Pierce v. Fulmer, 165 Ala. 344, 346, 347, 51 So. 728.

Or...