Phillips v. Phillips

• Decision Date: 16 April 1925
• Docket Number: 8 Div. 724
• Citation: 104 So. 234,213 Ala. 27
• Parties: PHILLIPS v. PHILLIPS et al.
• Court: Alabama Supreme Court

104 So. 234

213 Ala. 27

PHILLIPS v. PHILLIPS et al.

8 Div. 724

Supreme Court of Alabama

April 16, 1925

Appeal from Circuit Court, Lauderdale County; Charles P. Almon Judge.

Bill in equity by A.L. Phillips, individually and as executor of the estate of W.H. Phillips, deceased, and T.J. Phillips against Mrs. T.E. Phillips and others, for removal of administration from the probate court to the circuit court, construction of the will, and sale of property for division. From a decree granting relief as prayed, respondent Mrs. T.E. Phillips alone appeals. Affirmed

R.M Sims, of Florence, for appellant.

Mitchell & Hughston, of Florence, for appellees.

BOULDIN J.

The question of merit in this cause turns upon the construction of the will of W.H. Phillips, deceased. The testator had his domicile in the state of Tennessee. He owned property, real and personal, situated in Tennessee and in Alabama. The Alabama property, consisting of real estate in the city of Florence and corporate stock in Florence enterprises, was devised and bequeathed to his brothers and sisters, and their descendants. The Tennessee property was disposed of by a specific legacy to an adopted daughter, a specific devise to her son, and the residue of the estate, real and personal, to Mrs. T.E. Phillips, the wife of the testator. A brother residing in Alabama, and the husband of his adopted daughter, residing in Tennessee, were named executors.

The will was duly probated at the domicile, and letters testamentary granted to the executors; and later probated in Alabama and letters testamentary here granted. After the execution of the will devising the Alabama real estate to his brothers and sisters, the testator sold a portion known as the "Pickett Place," taking notes and mortgage for deferred payments of purchase money. Some of these notes were unpaid at the time of the testator's death, and were in the possession of his brother Tom Phillips, in Florence, Ala., who was acting as agent of the testator in looking after the Alabama property.

Tom Phillips turned over these notes and mortgage to A.L. Phillips, the executor, resident in Alabama. A.L. Phillips, individually and as executor, filed this bill to remove the administration to the equity court, construe the will, and make settlement. The bill claims these purchase-money notes passed under the devise of the Alabama lands to the brothers and sisters of the testator. Mrs. T.E. Phillips, by answer, set up her claim to these notes as residuary legatee of the personal estate. By special plea and by answer it was further alleged that the notes involved were personal assets under the law of the domicile; that a prior suit was pending in Tennessee for the construction of the will; and that the domiciliary court, having acquired jurisdiction, was the proper forum to determine the issue. The Alabama court proceeded to a decree holding these purchase-money notes passed to the brothers and sisters of decedent under devise of the lands.

The substantial issue here presented is: Did these purchase-money notes pass under the devise of the Alabama real estate, or as personalty under the residuary clause according to the law of the domicile? The solution seems to turn on whether the will, as it affects these notes, is to be construed under the laws of Alabama or the laws of Tennessee.

Section 10588 (6163) of the Code of Alabama of 1923 reads:

"When Devise Not Revoked by Contract for Conveyance of Property Devised.--When any testator, after making his will, makes any contract for the conveyance of any property devised in such will, and the whole or any part of the purchase money remains unpaid to such testator at his death, the disposition of the property by such contract is not a revocation of the devise, at law or in equity, unless it clearly appears by the contract, or some other instrument in writing, to be intended as a revocation; and such property passes to such devisee, subject to the same remedies for a specific performance thereof in favor of the persons entitled thereto, against the person to whom such devise was made, as might be had at law or in equity against the heirs of the testator, had the same descended to them; and the purchase money, when recovered by the executor of the testator must be paid to the devisee of such property."

See Scarbrough v. Scarbrough, 176 Ala. 141, 57 So. 820; Slaughter v. Stephens, 81 Ala. 418, 2 So. 145; Welsh v. Pounders, 36 Ala. 668; Powell v. Powell, 30 Ala. 697.

This statute defines the legal effect of devises to lands situated in Alabama. As to unpaid purchase money, still identified as such, and in the hands of the testator at the time of his death, the devise is not revoked. In other words, the will continues in force as a devise of lands, attaching to the unpaid purchase money as a substitute for the lands. For the purposes of the will, the statute treats the unpaid purchase money as real estate. It may be said the statute is written into every devise of lands situate in Alabama, as if to say on the face of the will, "I...