Powell v. Labry

• Decision Date: 18 October 1923
• Docket Number: 6 Div. 900.
• Citation: 97 So. 707,210 Ala. 248
• Parties: POWELL v. LABRY ET AL.
• Court: Alabama Supreme Court

97 So. 707

210 Ala. 248

POWELL v. LABRY ET AL.

6 Div. 900.

Supreme Court of Alabama

October 18, 1923

Appeal from Circuit Court, Jefferson County; Wm. M. Walker, Judge.

Bill by Mary Lyman Stone Labry against Hattie Lyman Powell, as executrix of W. F. Lyman, deceased, and others, for removal of estate into equity, construction of the will, etc. From a decree for complainant, respondents appeal. Reversed and remanded.

Items 2, 3, and 4 of the will of W. F. Lyman are as follows:

"2. I will, devise and bequeath to my nephew Robert I. Stone the house and lot located at the northwest corner of Nineteenth street and Fourteenth Avenue South, Birmingham Ala., fronting 50 feet on the west side of said 19th street and running back westwardly about 140 feet along the northern line of said Fourteenth avenue to an alley, on which it fronts 55 feet, known as No. 1346 South Nineteenth street, Birmingham, Alabama, said house and lot to be owned absolutely in fee simple by the said Robert I. Stone, as a home for himself and family, but in the event he should not wish to reside therein that he may rent out said property, as he may desire, receiving full benefit and income from said property, but no part nor interest in said property shall be sold or otherwise conveyed and disposed of during the space of ten years immediately succeeding the date of my death.

"(3) I will, devise and bequeath to my niece, Hattie Lyman Powell, the house and lot fronting about 75 feet to Nineteenth street and extending back westwardly about 140 feet to an alley and fronting on said alley about 82 1/2 feet, known as No. 1342 South Nineteenth street, Birmingham, Alabama, and being the house and lot immediately adjoining and north of the lot above devised to my nephew, Robert I. Stone, said house and lot to be owned, occupied or enjoyed by said niece, Hattie Lyman Powell, as she may desire, as a home for herself and family, but if she should prefer, she may rent out said property, but the income and rentals from said property shall be hers absolutely and unincumbered by any claims or bequests that may be herein made by me, but no other disposition or conveyance of said property shall be made by her during the term of ten years immediately succeeding the date of my death.

"(4) I give and bequeath to my niece, Miss Fannie Brazier, Birmingham, Alabama, $500.00 cash, to my niece, Mrs. Helen Falcon, Orange, Mass., $750.00 cash, to my niece, Mrs. Fannie Lane, Medford, Mass., $500.00 cash, to my niece, Mrs. Marie A. Barrett, Hinsdale, N. H., $500.00 cash, to my nephew, Henry Lyman, Keene, N. H., $500.00 cash, to my grandniece, Virginia Stone, Birmingham, Alabama, $500.00 cash and to my grandnephew, Warren Lyman Stone, Birmingham, Alabama, $500.00 cash, which said above named sums, so bequeathed, shall be paid only out of money left by me at the time of my death or that may be realized out of any other property that I may own at the time of my death, but is not to be a debt nor a charge against the two houses and lots hereinabove given to my nephew, Robert I. Stone, and my niece, Hattie Lyman Powell; and it is my will that my hereinafter named executors shall pay said sums, so bequeathed, to each of my relatives respectively herein named, as soon after my death as practicable, and for the purpose of so paying said bequeaths, they may sell and dispose of any property of my estate, except the said two parcels above given to my nephew, Robert I. Stone and my said niece, Hattie Lyman Powell and the personal property and effects, hereinafter given to my said niece, Hattie Lyman Powell."

By amendment to her answer and cross-bill respondent (executrix) averred that F. L. Bivings was appointed administrator of the estate of Robert I. Stone, deceased; that such administrator is proceeding in the discharge of his duties as such; that there has been so no final settlement by the administrator; that such administrator has the right to sue for and recover personal property, etc., such as rents mentioned in the original bill, and is a necessary party to that phase of complainant's bill seeking an accounting for rents. Said Bivings, as such administrator, is made a party cross-respondent to the cross-bill.

Rudulph & Smith, of Birmingham, for appellants.

R. C. Redus, of Birmingham, for appellee.

THOMAS J.

The general rules of equity pleading are well stated by this court, and need not be repeated. Heflin v. Heflin, 208 Ala. 69; ^[1] Overton v. Moseley, 135 Ala. 599, 33 So. 696; Cockrell v. Gurley, 26 Ala. 405. The bill as amended conformed thereto and was filed after the expiration of the time for presentation of claims against the estate; no error was committed in ruling on demurrer.

In Powell v. Labry, 207 Ala. 117, 92 So. 266, the bill as amended was held sufficient for removal of the administration into equity under General Acts 1915, p. 738; and it was there held that the construction of the will of W. F. Lyman would not be considered on that appeal from demurrer to the bill removing that administration. Hinson v. Naugher, 207 Ala. 592, 594, 93 So. 560.

The will is now for construction. Items 2 and 3 were specific devises of the properties indicated to Robert I. Stone, the ancestor of complainant, and Mrs. Hattie Lyman Powell, respectively. Item 4 gave certain moneys to the respective parties named. The residuary clause of the will placed the other properties of the estate in Mrs. Powell, who is the executrix of the estate and appellant here.

The nature and effect of a residuary clause in a will has been indicated and defined by this court. Blakeney v. DuBose, 167 Ala., 627, 52 So. 746; Ralls v. Johnson, 200 Ala. 178, 75 So. 926.

In the absence of an expressed contrary intent of the testator ( Colbert v. Daniel, 32 Ala. 314), the general rule, where the assets prove insufficient to pay the debts of the estate and all the legacies, is that the loss falls (1) upon the residuary, (2) then upon the general legacies, and (3) then upon the specific devises or bequests (40 Cyc. 1904).

The several classes of legacies are defined (Graham v. De Yampert, 106 Ala. 279, 17 So. 355; Mayfield v. Cook, 203 Ala. 49, 82 So. 9), and the foregoing order of abatement is declared in Kelly v. Richardson, 100 Ala. 584, 13 So. 785.

Under the common law, a personal representative was not required, in the ordinary course of administration, to exercise a control over the real estate of his intestate, and, if he did this, would hold the rents in trust for those legally entitled thereto. Terry v. Ferguson, Adm'r, 8 Port. 500; Smith's Heirs v. Smith's Adm'r, 13 Ala. 329, 335, 336; Henderson v. Henderson (Ala. Sup.) 97 So. 353, 359. If a recognized or statutory necessity exists, the personal representative may intercept the possession of the heir or devisee to the real estate, for the purpose of a due administration of the estate and payment of debts. Code 1907, §§ 2618, 2619, 2596; Banks v. Speers, 97 Ala. 560, 562, 11 So. 841; Calhoun v. Fletcher, 63 Ala. 574; Tyson v. Brown, 64 Ala. 244; Lee's Adm'r v. Downey, 68 Ala. 98, 101; Landford v. Dunklin & Reese, 71 Ala. 594; Sullivan v. Rabb, 86 Ala. 433, 5 So. 746; Woods v. Legg, 91 Ala. 511, 8 So. 342; Stovall v. Clay, 108 Ala. 105, 110, 20 So. 387; Mayer v. Kornegay, 163 Ala. 371, 50 So. 880, 136 Am. St. Rep. 79; Southern Ry. Co. v. Hayes, 198 Ala. 601, 605, 73 So. 945; Johnson v. Sandlin, 206 Ala. 53, 89 So. 81; Turk v. Turk, 206 Ala. 312, 89 So. 457; Dallas Compress Co. v. Liepold, 205 Ala. 562, 568, 88 So. 681.

In Banks v. Speers, 97 Ala. 560, 565, 566, 11 So. 841, 843, Mr. Chief Justice Stone said:

"We have shown that in this case there are unsatisfied debts against the estate of M. D. Burchfield, which have been reduced to judgment against his personal representatives. If sufficient personal assets, after carving out of them the widow's exemptions, were left to pay his debts, the case has not arisen which authorizes the sale of lands of decedent for their payment. Code of 1886, §§ 2103, 2104. In other words, unless a case is shown in which 'the personal estate is insufficient' for the payment of the debts, the personal representative is not entitled to an order for the sale of the lands; nor, as we have shown, should he be allowed to recover the lands for purposes of administration, when it appears affirmatively that they cannot be applied to such purpose. *** What are the presumptions in such case, and on whom rests the burden of proof? *** Our statutory system authorizes him to intercept the descent of the realty, and to demand and recover the possession, even against the heir. 3 Brick Dig. 464, §§ 146 et seq. It is manifest that until after the expiration of eighteen months it cannot be known with certainty what debts exist against the estate, nor can it, in all cases, be certainly known during that time that the lands will or will not be wanted for the payment of debts. Cases may and do exist of an insufficiency of personal effects to meet all the debts, and yet the rents of the realty for a brief time would supply the deficiency, and save the lands from sale. So, it is

clear that much must be left to the enlightened discretion of the personal representative, whether he will or will not assert his right to take possession and control of the realty, during the eighteen months allowed for the presentation of claims against the estate. It is safe to assert that up to the end of eighteen months after administration granted neither the heir, nor any one claiming in his right, can be heard to dispute the right of the personal representative to the possession of the realty, as assets of the estate."

See Owens v. Childs, 58 Ala. 113; Lee v. Downey, 68 Ala. 98.

Thus within the period for presenting claims against an estate,...