Powell v. Pearson

• Decision Date: 05 December 1929
• Docket Number: 1 Div. 538.
• Citation: Powell v. Pearson, 220 Ala. 247, 125 So. 39 (Ala. 1929)
• Parties: POWELL ET AL. v. PEARSON.
• Court: Alabama Supreme Court

125 So. 39

220 Ala. 247

POWELL ET AL. v. PEARSON.

1 Div. 538.

Supreme Court of Alabama

December 5, 1929

Appeal from Circuit Court, Mobile County; Saffold Berney, Judge.

Bill in equity by Minnie Macartney Pearson against Glenn Rutland and others and Oliver H. Powell and Alford L. Staples. From a decree overruling demurrers to the bill, respondents appeal. Affirmed.

Where first life tenant's power of appointment was defeated by survival of his wife, property at her death passed as intestate property to heirs of testatrix as of latter's death.

The will involved is as follows:

"In the Name of God, Amen:

"I Isabella H. Emanuel of the City and County of Mobile and State of Alabama, being in feeble health, but of sound mind and disposing memory, do make, publish and declare this to be my last will and testament, hereby revoking and declaring null and void all other and former wills made by me.

"First I hereby nominate and appoint my friend, Henry A. Schroeder, and my son-in-law, William Barnewall, to be the executors of my last will and testament, and in the event that neither of them be living at my death, or in the event that neither of them for any cause fail to qualify, that is, that both should die before I do, or both from any cause fail to qualify, (It being my will that one act if the other can not) then it is my will and I so direct, that whomsoever the majority of my children then living shall in writing nominate to the Probate Court (two persons to be nominated and appointed) as fit and proper persons for the trust, shall be appointed as my executors with the will annexed; meaning by the above that in case neither Henry Schroeder or Wm. Barnewall act, one or both may do so, then that the majority of my children then living shall select by naming in writing whomsoever they choose as my executors; but in the latter event two persons must be selected; and it is my will and I so direct that whomsoever shall become the executors of my will under any of the foregoing stipulations and conditions shall not be required to give any bond for the faithful performance of the duties required of them. But in case from any contingency in the future from unforeseen circumstances an administrator should be appointed, then it is my will that he be required to give a good and sufficient bond.

"Second: It is my will that so soon as may be after my death that all of my just debts and funeral expenses be paid.

"Third: I give, devise and bequeath to my daughter, Mary E. Barnewall, for her sole use and benefit forever, the following named real estate in the City of Mobile, State of Alabama, to-wit: The three story brick building No. 33 N.W. corner St. Michael and Commerce Streets, now occupied by Michael & Lyons, I also give to my daughter, Mary E. Barnewall, the Emanuel Warehouse with the wharf and water privileges thereunto belonging, situated north of State Street on East side of Front Street to the channel; also one two story brick building on Government Street, No. 50, now occupied by Mrs. Bloom, next to Kosminsky's; also one-half of my dwelling house now occupied by me on the S.W. corner of Government and Joachim Streets, together with half of the household furniture, pictures, glassware, carriages, and horses, etc., etc., remaining therein at my death, reserving from this devise and bequest the plate and such articles as I may otherwise dispose of by memorandum signed by me.

Fourth: I give, devise and bequeath to the children of my daughter, Eveline E. Murrell who may be living at my death for their sole use and benefit forever the following real estate in the City of Mobile, State of Alabama, to-wit: One three story brick building No. 6 St. Michael Street; also the one two story brick building on Government Street Number 46, and now occupied by Mrs. Serda; also two brick stores on Water Street, Nos. 45 and 47, now occupied by Piser. I also give to Effie and Mary B. Murrell the two story brickstore No. 42, situated on the east side of Commerce Street, between St. Louis and St. Michael Street (nearest St. Louis) now occupied by Forcheimer & Co., while they remain unmarried. Should one marry, then this store to belong to the one unmarried. Should both marry, then the three sisters, Effie and Mary B. Murrell and Isabella Shields, to possess said store jointly. I also give to Effie and Mary Murrell the house and ground at Sydney on the M. & O. Railroad.

"Fifth I give, devise and bequeath to the children of my daughter, Fannie E. Rutland, now living for their sole use and benefit forever, the following named real estate in the City of Mobile, State of Alabama, to-wit: Two brick stores nearest St. Louis Street on the east side of Water St., now occupied by Strauss as an auction store; also two brick buildings Nos. 7 and 8 Conti Street; also Store No. 8 on St. Michael Street; also a small piece of land on Conti Street which was formerly used as Hickey's bath house, or rather the land that joins my daughter's offices which was formerly so used.

"Sixth: I give devise and bequeath to my daughter Josephine E. Macartney for her sole use and benefit forever the following named real estate in the City of Mobile, State of Alabama, to-wit: The two story brick store at the Northeast corner of St. Michael and Commerce Street, No. 38, now occupied by Forcheimer and Co., also the two story brick store next to the corner of St. Michael and Commerce Street, No. 40, and now occupied by Forcheimer & Co., also the Alabama Warehouse; also the three story brick store next to the Northwest corner St. Michael and Commerce Streets, No. 35, occupied by Michael Lyons & Co.; also all of the land owned by me in the State of Mississippi; description not now remembered.

"Seventh: I give, devise and bequeath to my daughter Virginia E. Mitchell, for her sole use and benefit forever, the following named real estate in the City of Mobile, State of Alabama, to-wit: One two-story brick building on Government Street, No. 48, 2nd next to Kosminsky's; also one three-story brick store on Water Street, No. 31, between St. Michael and St. Francis Streets and also the building on St. Michael Street, No. 23 occupied as a warehouse; also the store on Water Street, No. 33, also one-half of the dwelling now occupied by me on the S.W. corner of Government and Joachim Streets together with half of the household furniture, pictures, glass-ware, carriages, horses, etc., etc., remaining therein at my death, reserving from this devise and bequeath the plate and such other articles as I may otherwise dispose of by a memorandum signed by me; also one brick store on the east side of Water Street, now occupied by Strauss as an auction store, K. Irwin upstairs; also one lot on Bay Shell Road, 2nd Toll Gate.

"Eighth: I give, devise and bequeath to my son Edward Emanuel the following described property in the City of Mobile, State of Alabama, to-wit: The store on west side of Commerce Street now occupied by Michael & Lyons, situated between St. Michael and St. Louis Streets, being No. 39; also the building on the North East corner of Royal and St. Michael Street; in which I have heretofore owned a three-quarter interest with the estate of Lyon, but have purchased the remaining one-fourth interest from the estate of Lyon, and now give the entire property to my son Edward, said building now occupied by various parties; also the two story brick building situated on the North East corner of Government and Royal Streets, now occupied by Kosminsky; also a small building No. 47 South Royal, next to Kosminsky's; also the three story brick building No. 10 St. Michael Street.

"To have, hold, and enjoy by my said son Edward Emanuel the use, benefits and profits of said property above bequeathed, during and for his life only; but if he should die leaving a wife and child or children, then his said wife shall have and enjoy the use, benefits, and profits of the same, during her life only, and at her death it shall go to my son's child or children, if any be living, forever; but if my son should die, But if he should die leaving neither a wife, nor child or children, then it is my will that all of said property shall go to his sister or sisters, nephew or nephews, niece or nieces, as he may will or direct, forever. It is my will and I so direct that my executors herein named, or whomsoever may become my executor or administrator, shall become, and they are hereby constituted and appointed trustee or trustees for all of this property herein devised and bequeathed to my said son Edward Emanuel; and it shall be his or their duty to manage, control and take charge of said property, renting or leasing it, and the income and profits, after paying the taxes, insurance and other necessary expenses incident to the management of said property, to be by them paid to my said son Edward as my son shall wish or require.

"It is my will, and I so direct, that none of said property shall be sold during the life of my son unless said trustee shall concur with my son in the opinion that a sale would be manifestly to the interest and advantage of my son; and in event such a sale should be made, it is my will that said trustee or trustees shall join in the conveyance to the purchaser and that the purchase money shall be paid to the trustee or trustees, and the amount so realized shall be by them in property to be held and owned by my son upon the same terms and conditions in every respect, both as to his estate therein, and as to the mode and manner of inheritance and descent, and as to whom it shall go after his death, as the property herein devised is held by and for him. And it is my will that unless the terms and conditions of such sale above set forth are faithfully complied with, then such sale or...