Noble v. Tait

• Court: Alabama Supreme Court
• Writing for the Court: HEAD, J.
• Citation: Noble v. Tait, 24 So. 438, 119 Ala. 399 (Ala. 1898)
• Decision Date: 29 October 1898
• Parties: NOBLE ET AL. v. TAIT ET AL.

24 So. 438

119 Ala. 399

NOBLE ET AL. v. TAIT ET AL.

Supreme Court of Alabama

October 29, 1898

Appeal from city court of Montgomery; A. D. Sayre, Judge.

Bill by Annabella M. Tait and others against J. S. Noble and others for the removal of the administration and settlement of the estate of Benjamin F. Noble to the chancery court. From a decree denying defendant Noble's motion to dismiss the bill he appeals. Affirmed.

Tompkins & Troy, for appellant.

Graham & Steiner, for appellees.

HEAD J.

On May 23, 1890, Mrs. M. T. Noble, who, with another, was nominated in the will as such, was appointed executrix of the will of her deceased husband, Benjamin F. Noble, by the probate court of Montgomery county; and she has since continued to be and act as such, having made no settlement of the trust. The estate of the testator, which was large, was devised and bequeathed jointly, and in equal interests, to said Mary, the widow, and testator's children, Annabella M., Edward F and Mary F. Noble, and to any future "heir or heirs" of the marriage of testator and said Mary. There were afterwards born of the marriage Louisa M., who married Holt, and J. S. Noble. Edward F. afterwards died, leaving two children, Benjamin F. and Edward M., both under age at the filing of this bill, and in the custody and control of said Mary, the executrix, but of whose persons and property the said J. S. Noble is the legally appointed and acting guardian. The will provided that the estate should be kept together as a common fund to be distributed equally as the "heirs" should become of age, but that his wife should have the privilege of withdrawing from the estate her "equal and just proportion" at any time she might think proper, after providing for the payment of the debts. It was provided that said Mary should have the control management, and education of the children, the expenses of which, together with the support of said Mary (her share not having been withdrawn), to be paid out of the common fund and until a withdrawal of her interest she was given the use of the residence, furniture, and other things pertaining to the household. The will appointed the executor (who was a brother of testator, but who declined to act either as executor or trustee) and the executrix, the said Mary, named therein, and their successors, to act as trustees for all of the testator's daughters, to hold, manage, and control the property of each for her sole and separate use and benefit during her natural life,-the property then to vest in her "natural offspring, if any"; but the daughters should be "permitted the use and benefit of the property." The said Annabella married Tait, and she and Mrs. Holt file this bill for removal of the administration and settlement of the estate in the chancery court; the executrix and other devisees being, parties defendant. The bill shows that the devisees and legatees are all over 21 years of age, except said two children of Edward F. The executrix has never withdrawn her share of the estate. She has never returned any inventory, nor made any settlement or distribution. The debts, if there are any, have all been paid, or are barred by the statutes of limitations or nonclaim. The bill alleges that, at the death of the testator, he and his son, said J. S. Noble, were engaged, as partners, in the real-estate and insurance business in Montgomery;...