Patterson v. First Nat. Bank of Mobile

• Decision Date: 28 October 1954
• Docket Number: 1 Div. 549
• Parties: James S. PATTERSON, as Administrator of the Estate of Marcus Lichtbach, Deceased, v. The FIRST NATIONAL BANK OF MOBILE, as Executor, etc., et al. Lucille Z. HERMAN v. The FIRST NATIONAL BANK OF MOBILE, as Executor, etc., et al. Leon SAFDI, as Executor of the Estate of Betty Herman, Deceased, v. The FIRST NATIONAL BANK OF MOBILE, as Executor, etc., et al. , 552, 555.
• Court: Alabama Supreme Court

Page 471

75 So.2d 471

261 Ala. 601

James S. PATTERSON, as Administrator of the Estate of Marcus Lichtbach, Deceased, v. The FIRST NATIONAL BANK OF MOBILE, as Executor, etc., et al.

Lucille Z. HERMAN v. The FIRST NATIONAL BANK OF MOBILE, as Executor, etc., et al.

Leon SAFDI, as Executor of the Estate of Betty Herman, Deceased, v. The FIRST NATIONAL BANK OF MOBILE, as Executor, etc., et al.

1 Div. 549, 552, 555.

Supreme Court of Alabama.

Oct. 28, 1954.

Arthur J. Kearley, Mobile, for appellant Patterson, Adm'r.

Kilborn & Johnson and Wm. V. McDermott, Mobile, for appellants Safdi, Adm'r and Herman.

Caffey, Gallelee & Caffey and Leo M. Brown, Mobile, for appellees.

PER CURIAM.

There are three appeals submitted in one record. Each of them is from a decree sustaining a demurrer to the original bill or a cross bill. There are two cross bills. The complainant in the original bill and cross complainant in each of the cross bills took an appeal, and each of the three appellants assign errors separately.

The complainant in the original bill is the administrator de bonis non cum testamento annexo of the estate of Marcus Lichtbach who died in 1935, leaving a will which was duly and properly probated. Section 175, Title 61, Code. He named as executors his wife, Lena, and his brother, Isaac, who qualified as such. He left no children.

Marcus and Isaac were partners in a business enterprise and owned real and personal property in common. An item of the will provided that his partnership interest in the firm of Lichtbach Brothers be continued in the name of his estate in the same manner as though he were still living until the time of the division of his estate 'as has been hereinbefore provided', which was the death of his wife, Lena. After his death his executors continued with the partnership. They made an annual settlement the same year in which Marcus died, but have made no further settlement of any sort. Lena and Isaac continued the business as before until Isaac died in 1943, and his widow, Mary, became his executrix. Thereafter Lena and Mary continued the business as before until Lena died in 1945, and the First National Bank of Mobile became her executor. Thereafter the bank as such executor and Mary have continued the business, and have not made settlement. The bank as executor of Lena filed accounts for a final settlement of Lena's estate. But Lena's executor and Isaac's executrix Mary have not undertaken to settle their executorship of the estate of Marcus. One purpose of the original bill by Patterson as administrator de bonis non was to compel the executors of Lena and of Isaac to make such a settlement.

The bill alleges that the bank as executor of Lena's estate has received large amounts of money and effects which belong to the estate of Marcus and which should be paid to him as such executor. It shows that no debts were presented within the time required by law. It does not allege that he as administrator de bonis non needs to receive into his possession any of the assets of Marcus except for distribution to the legatees. It does not show that there exists any 'other act of administration to be done than making distribution or payment of legacies, and the estate is solvent,' as provided in section 322, Title 61, Code. Therefore, 'the court [in which the administration is pending] must at once proceed to decree distribution or payment of legacies directly to those entitled'. The administration of the estate of Marcus and that of Lena have been removed into that court of equity. This of course may be done on the petition of the executor, administrator or certain others without any special equity. Section 139, Title 13, Code.

We judge from the arguments that the court sustained the demurrer to the bill on the ground that the will bequeathed to Lena the full and complete ownership of all the property and effects of Marcus, and therefore she is not accountable to the administrator de bonis non of the estate of Marcus for any of the property since the estate does not need it for any administrative purpose. (Twelve years expired from the time Marcus died to the filing of the original bill.) It is not contended by appellant that if that is a correct construction of the will, he has any standing in equity on account of this bill, and the demurrer was properly sustained.

The cross bills, one by Betty Herman and another by Lucille Herman, are dependent also upon a construction of the will. They claim to have succeeded by inheritance to an interest in the estate of Pauline Lichtbach Herman who is named in the will of Marcus as a legatee. They therefore are due to have distributed to them the share of the personal estate of Marcus to which they thus became the owners and which estate went into the hands of Lena and Isaac as the executors of Marcus and is now in the hands of the bank as Lena's executor and of Mary as the executrix of Isaac. Their interest results from a succession of events by which they each claim to have succeeded to certain interests in the estate of Pauline who was a legatee of Marcus and who had no children. Pauline was one of two children of Isaac: Cecile being the other child. Pauline died in 1936 soon after the death of Marcus. She left surviving her husband Robert Herman, her father Isaac and her mother Mary and sister Cecile, but no children. Cecile died in 1944 and left her husband Sidney Simon, and her mother Mary, but no children.

The first question is did Pauline receive any interest in the estate of Marcus by virtue of his will? The will must be construed. It is as follows:

'First. I direct that my just debts be paid by my executors hereinafter named, as soon after my death as may be by them found practicable.

'Second. I give and bequeath to my two nieces, Pauline and Cecile, two thousand dollars each, payable as soon after my death as my executors find practicable.

'Third. I give, devise and bequeath to my beloved wife, Lena, all the property of which I shall die seized or possessed, or to which I may be entitled at the time of my decease, whether real, personal or mixed, except the four thousand dollars bequeathed to my two nieces, under item Second of this will.

'I direct that my estate shall be kept together until the death of my said wife, Lena, the income thereof to be used for her support, and upon her death, my estate shall be equally divided between the two daughters of my brother, Isaac Lichtbach.

'I request that my partnership interest in the firm of Lichtbach Brothers be continued in the name of my estate, in full force and effect, and in the same manner as though I were still living, until the time of such division of my estate as has been hereinbefore provided.

'Fourth. I hereby nominate and appoint my said wife, Lena, and my brother, Isaac Lichtbach, as executors of this my last will and testament, and declare that they shall not be required to give any bond as such executors nor shall they be required to make any inventory of the property coming into their hands as such executors, nor make any report to any court of their proceedings hereunder.

'Fifth. Should it become necessary or expedient for the accomplishment of the purpose of this, my last will and testament, to convert into cash, my estate, or any part thereof, I hereby grant unto my said executors full power and authority to make such public or private sale of all or any part thereof as they may deem advisable.'

But regardless of its construction as to the legacy to Pauline, the original bill does not show a right of the administrator de bonis non of Marcus to any relief. If the will meant to bequeath it all to Lena, no right is shown by the administrator to have Lena's estate account to him. If the will means to bequeath to Pauline and her sister all of his estate in remainder the present administrator of the estate of testator does not show that for purposes of administration he is entitled to have any of the estate turned over to him by reason of the statute. Section 322, Title 61, Code. The demurrer to the original bill was properly sustained. But cross complainant Lucille Herman would in that event succeed to a share of Pauline's personal estate. Therefore, if Pauline took a vested remainder under the will of Marcus, Lucille would have some standing in equity as we shall show. A construction of the will is necessary to determine whether Lucille has such interest as will support her cross bill.

The construction of a will is always started with the proposition that the province of the court is to ascertain the intent of the testator from the language of the will in connection with attending facts and circumstances which may shed light upon any apparent uncertainty arising from its terms or existing by reason of such facts and circumstances. Sharp v. Hall, 86 Ala. 110, 5 So. 497; Achelis v. Musgrove, 212 Ala. 47, 101 So. 670; City Bank & Trust Co. v. McCaa, 213 Ala. 579, 105 So. 669; Orr v. Helms, 217 Ala. 603, 117 So. 61; Spencer v. Title Guarantee Loan & Trust Co., 222 Ala. 485, 132 So. 730; Hammond v. Bibb, 234 Ala. 192, 174 So. 634; Money v. Money, 235 Ala. 15, 176 So. 817; Baker v. Hendricks, 240 Ala. 630 200 So. 615; Wiggins v. Wiggins, 241 Ala. 333, 2 So.2d 402; George v. Widemire, 242 Ala. 579, 7 So.2d 269; Kimbrough v. Dickinson, 247 Ala. 324, 24 So.2d 424; McGehee v. Smith, 248 Ala. 174, 26 So.2d 861; Smith v. Nelson, 249 Ala. 51, 29 So.2d 335; Springer v. Vickers, 259 Ala. 465, 66 So.2d 740.

Here we are dealing with a will and not a deed, where the rules of construction are not identical. A later clause in either must be construed in harmony with an earlier clause, if such construction can be fairly given. Where there is an irreconcilable difference between two clauses or provisions of a will the last clause generally prevails as the latest expression of the testator's intention. 69 Corpus Juris 112; Orr v. Helms, supra; Gurley v. Bushnell, 200 Ala. 408, 76 So. 324; Gunter v....