Morris v. Morris

• Decision Date: 01 December 1978
• Citation: 366 So.2d 676
• Parties: Jean B. MORRIS v. Joe Martin MORRIS, Jr., et al. 77-412.
• Court: Alabama Supreme Court

Page 676

366 So.2d 676

Jean B. MORRIS v. Joe Martin MORRIS, Jr., et al.

77-412.

Supreme Court of Alabama.

Dec. 1, 1978.

Rehearing Denied Jan. 26, 1979.

Bryant A. Whitmire, Wade H. Morton, Birmingham, for appellant-petitioner.

Wm. Bew White, Jr., and Hobart A. McWhorter, Jr., Birmingham, for appellees.

SHORES, Justice.

This appeal is from a summary judgment granted in favor of the defendants in an action to rescind an agreement between them and the plaintiff. We affirm.

The plaintiff, Jean B. Morris, is the widow of Joe Martin Morris, Sr., who died July 5, 1975. The defendants are the children of the decedent by a former wife. Following the funeral of the decedent, the widow and children agreed that whether or not a will was located, the property belonging to the decedent would be divided equally among the three of them in accordance with an agreement which would be prepared. Pursuant to this oral agreement, the widow employed the firm of Pritchard, McCall & Jones to prepare such an agreement. The agreement provided in part:

"AGREEMENT DIVIDING PROPERTIES OWNED BY JOE MARTIN MORRIS, DECEASED

". . .ENT

"WHEREAS, none of the parties hereto, nor the Accountant of Joe Martin Morris, have been able to locate or determine whether Joe Martin Morris had executed a valid Last Will and Testament during his lifetime, which would be effective upon his death, and in all probability the said Joe Martin Morris died intestate and thus all of his property would pass according to the applicable laws of dissent (sic, descent) and distribution, with his widow Jean B. Morris being entitled to certain statutory interests; and

" . . .res

"WHEREAS, the parties hereto have agreed to a plan of disposition and division of the net estate of Joe Martin Morris, Deceased, said Agreement to be in lieu of any statutory rights conferred upon any party hereto, whether under the laws of the State of Alabama, or any other State, and irregardless (sic) of whether a valid Last Will and Testament of Joe Martin Morris, Deceased, shall be discovered at some later date, it being the intent of the parties thereto to divide the net estate in accordance herewith, irregardless (sic) of any rights any party has either by law or will.

". . ."wit

This agreement was executed by all parties a few days after the death of the decedent.

The principal asset of the estate was all of the capital stock of Alabama Metal Products Company, Inc. In addition to the division agreement referred to above, Mrs. Morris had the same law firm draft an agreement relating to the operation of the company, after the stock was distributed one-third to each party. This agreement was executed by all parties and the three were elected directors of the company.

The widow was appointed administratrix of the estate on July 22, 1975; and, on her petition, the administration was removed to the circuit court on December 22, 1975.

Thereafter, on January 29, 1976, the widow petitioned the court for the appointment of additional directors of the company.

Following this petition, the children filed a complaint requesting that the court declare each of them owners of one-third of the company stock and order the distribution of the stock in accordance with the agreements between the parties. After a hearing, the parties reached an agreement which was incorporated into a judgment by the trial court, which ordered the stock sold and distribution made of the proceeds pursuant to the division agreement.

Thereafter, the trial court, at various times, on petition, ordered the administratrix to make distribution of estate funds to the three equally.

The foregoing states the status of the administration in the circuit court when the instant proceeding was commenced. In January, 1978, the widow filed a petition in the estate proceeding which sought a rescission of the division agreement. The petition alleged that the agreement was the product of mutual mistake.

In support of this assertion, it was alleged that the existence of this agreement increased the estate tax liability. The children filed a motion to strike, under ARCP 11, and a motion to dismiss, under ARCP 12(b), (c). A hearing was held on these motions, various exhibits were received into evidence, counsel for both sides presented argument, and the trial court announced that the motion to dismiss would be considered as a motion for summary judgment in accordance with ARCP 12(b). The court entered an order on February 28, 1978, setting a hearing on the motion to dismiss to be considered as a motion for summary judgment for March 10, 1978. In its February 28th judgment, the trial court noted that, based upon the voluminous record in the cause ". . . the Court concludes that the parties should have, and in fact are entitled to, the rights afforded by Rule 56."

Prior to the hearing set for March 10, the widow filed an affidavit in opposition to the motion to be treated as one for summary judgment under ARCP 12(b), and also filed a motion that the trial judge recuse himself. The trial judge denied the motion to recuse and granted the motion for summary judgment. The widow contends on appeal...