Perryman v. Pugh, 6 Div. 988

• Decision Date: 20 August 1959
• Docket Number: 6 Div. 988
• Citation: 269 Ala. 487,114 So.2d 253
• Parties: Thomas I. PERRYMAN v. Sam PUGH, Executor.
• Court: Alabama Supreme Court

Page 253

114 So.2d 253

269 Ala. 487

Thomas I. PERRYMAN v. Sam PUGH, Executor.

6 Div. 988.

Supreme Court of Alabama.

Aug. 20, 1959.

Huey, Stone & Patton, Bessemer, for appellant, Perryman.

McEniry, McEniry & McEniry, Bessemer, for appellee, Pugh.

GOODWYN, Justice.

Appellant, Thomas I. Perryman, filed in the circuit court of Jefferson County, Bessemer Division, in equity, a bill of complaint against appellee, Sam Pugh, individually and as executor under the last will and testament of Hessie P. Perryman, deceased, seeking, as last amended, (1) specific performance of an alleged oral agreement between appellant and the said Hessie P. Perryman, his wife, to make irrevocable wills in favor of each other, and also seeking, in the alternative, (2) to have a resulting trust decreed in appellant's favor with respect to the property, both real and personal, standing in his wife's name at the time of her death, (3) specific performance as to the personal property only, and (4) a resulting trust as to the personal property only. The decree appealed from sustained appellee's demurrer 'to that aspect of the bill, as last amended, relative to and involving the real property of the estate', overruled appellee's demurrer 'to that aspect of the bill, as last amended, relative to and involving the personal property of the estate', and overruled appellee's demurrer 'to the bill as a whole, as last amended.'

It is not clear to us just what it is the trial court intended by its decree. Under the circumstances we think it appropriate to consider on this appeal only that part of the decree overruling the demurrers 'to the bill as a whole, as last amended.' So considered, the question presented is whether the bill has equity in any of its aspects. Marshall County Gas District v. City of Albertville, 263 Ala. 601, 603, 83 So.2d 299, and cases there cited.

(In Pugh v. Perryman, 257 Ala. 187, 58 So.2d 117, Thomas I. Perryman sought relief by way of a declaratory judgment proceeding. It was held that the will of Hessie P. Perryman in favor of Sam Pugh could not be declared inoperative until aftere it had been probated; also, that the equity court had no power to declare Hessie P. Perryman's will in favor of Thomas I. Perryman to be her last will and testament. After that decision and probate of the will in favor of Sam Pugh appellant brought the proceeding now before us.)

The allegations of the amended bill, to the extent material on this appeal, may be stated as follows:

Appellant and Hessie P. Perryman (who will, for convenience, be referred to hereinafter simply as 'Hessie') were married on March 1, 1924, and thereafter lived together as husband and wife until her death on October 30, 1950. She left surviving her, as her sole heirs and next of kin, the appellant and her two brothers, Thomas Pugh and appelee, Sam Pugh.

At the time of the marriage Hessie did not own any property except an undivided interest in what was to become their home place. At the time of her death she had the legal title or joint title with appellant to several parcels of real estate and some personal property, including an Investors Syndicate bond or certificate, the exact amount of which was unknown to appellant, and $2,500 on deposit in a postal savings account. The parcels of real estate and the items of personal property are set forth in the bill in detail, including the amount paid by appellant for each parcel and item, and the improvements, repairs, taxes and insurance thereon. Except as to one parcel of real estate (lot 16 in block 437, according to the present plan and survey of West Lake Highlands, as to which it is alleged that the purchase price was paid jointly by appellant and his said wife), it appears that appellant contributed all of the funds for the purchase of each parcel of real estate and each item of personal property, and also for the improvements, repairs, taxes and insurance in connection therwith.

It is alleged, in substance, that title to each parcel and item of such property was placed in Hessie's name pursuant to an oral agreement made between her and appellant soon after their marriage whereby they were to make irrevocable mutual wills in favor of each other so that on the death of one the survivor would be protected.

A number of years went by without making the wills as agreed. In 1941 Hessie wanted appellant to erect a garage on the home property. At this time the respondent-appellee, Sam Pugh, still held title to an undivided interest in the home place, although he was supposed to have conveyed it to Hessie when she acquired Thomas Pugh's interest several years before. Appellant refused to erect the garage until Hessie promised to acquire Sam Pugh's interest in the home place without further delay. She promised, appellant erected the garage and she obtained Sam Pugh's interest in the home place in September, 1942. At that time their agreement for making mutual wills was again discussed and reaffirmed. But the wills were not made until April 5, 1944. They were made at that time because appellant told Hessie he would not continue to make improvements to the property in her name and maintain the same and pay the taxes and insurance thereon, or place in her name the title to property thereafter purchased by him, until they had protected themselves by the making of such irrevocable wills.

As to the agreement, the bill alleges the following:

'* * * [T]hat it was then agreed by and between the complainant and his said wife, that his said wife, Hessie P. Perryman, would make and execute an irrevocable will bequeathing all of her property to complainant, in recognition of and in consideration of the property he had theretofore purchased, the title to which was in her name, and the other expenditures he had made to and on said property, and in consideration of complainant makin simultaneously therewith an irrevocable will to all his property in her favor and complainant's agreement to thereafter continue, as in the past, making investments in property in her name or in their joint names, and paying all taxes and insurance premiums on all properties and keeping and maintaining the home place in a good state of repairs; that in pursuance to and in full performance of said agreement and for the considerations aforementioned, the said Hessie P. Perryman did on, to wit, April 5, 1944, execute a will bequeathing all her property to the complainant, a copy of which is hereto attached, marked Exhibit A [set out hereinafter] and made a part hereof as if set out in full; that simultaneously with the execution of said will by complainant's said wife, the complainant executed a will in her favor, a true and correct copy of which is hereto attached and marked Complainant's Exhibit B [identical with Exhibit A except as to transposition of names of appellant and Hessie], and made a part hereof as if here and now set out in full, which said wills were delivered to complainant and were taken by him and placed in a safety deposit box of the American Bank and Trust Company, Bessemer, Alabama, where they remained under the custody and control of complainant and in a place of safety until subsequent to the death of complainant's said wife.'

'Exhibit 'A'

'State of Alabama

Jefferson County }

'I, Hessie Pugh Perryman, a resident of Jefferson County, Alabama, being more than twenty-one years of age and of sound mind and disposing memory, but realizing the uncertainty of the duration of life, do make this my last will and testament, hereby revoking all former wills that have at any time heretofore been made by me.

'Item One

'I will, devise and bequeath unto my dear husband, Thomas I. Perryman, all of the property of which I may die seized and possessed, or to which I may be entitled at the time of my decease, real, personal and mixed and wherever located, to have and to hold absolutely.

'I nominate and appoint my said husband, Thomas I. Perryman, as Executor of this my last will and testament, and I do specifically direct and declare that he shall not be required to make any bond, nor make any inventory of the property coming into his hands as such Executor, nor report to or answer to any Court, at law or in Equity for his actions hereunder.

'In Witness Whereof I have hereunto set my hand this the 5th day of April, 1944.

'Signed: Hessie Pugh Perryman

'Signed and declared to be her last will and testament by Hessie Pugh Perryman, in our presence, and we in her presence and in the presence of each other, and at her request, have hereunto set our names as witnesses on the day the same bears date.

'Signed: Wm. C. Smithson

'Signed: Ruth Mackey'

It is further alleged that, in accordance with said agreement and 'in reliance upon said agreement and the execution of the will by the said Hessie P. Perryman in his favor, complainant thereafter in every respect fully and completely performed said agreement until the death of the said Hessie P. Perryman, by thereafter making investments in the joint names of complainant and said deceased'; that appellant deposited $2,500 of his own funds 'in the name of said Hessie P. Perryman with the United States Post Office Department and other investments in her name,' and 'expended from his own funds the amounts necessary to maintain and improve their home place and paid the taxes and insurance premiums on all of the property of complainant and the said Hessie P. Perryman, including property the title to which was vested solely in the said Hessie P. Perryman'; that appellant 'never at any time undertook or attempted in any way to repudiate said agreement or revoke his said will executed in favor of the said Hessie P. Perryman but' he 'fully and completely abided by and performed said agreement'; that on July 31, 1944, 'the said Hessie P. Perryman, without the knowledge or consent...