Pugh v. Perryman

• Decision Date: 03 April 1952
• Docket Number: 6 Div. 270
• Citation: 257 Ala. 187,58 So.2d 117
• Parties: PUGH v. PERRYMAN.
• Court: Alabama Supreme Court

Page 117

58 So.2d 117

257 Ala. 187

PUGH v. PERRYMAN.

6 Div. 270.

Supreme Court of Alabama.

April 3, 1952.

McEniry, McEniry & McEniry, Bessemer, for appellant.

Huey, Welch & Stone, Bessemer, for appellee.

STAKELY, Justice.

This is an appeal from the Bessemer Division of the Probate Court of Jefferson County from a decree overruling a demurrer to a bill for a declaratory judgment filed in that court.

Hessie P. Perryman died on October 30, 1950 and on November 6, 1950 Thomas I. Perryman (appellee here) filed in the said probate court a petition to probate an alleged will of the said decedent made by her on April 5, 1944. Under this instrument Hessie P. Perryman left all of her property to Thomas I. Perryman, her husband.

Thereafter on November 9, 1950 Sam Pugh (appellant here), brother of the deceased, filed in the aforesaid court a petition to probate an alleged will of Hessie P. Perryman dated July 31, 1944. Under this instrument Hessie P. Perryman left all of her property to her brother Sam Pugh. Both of the aforesaid petitions are now pending.

Thereafter a bill for a declaratory judgment was filed by Thomas I. Perryman (appellee) in the Bessemer Division of the Probate Court of Jefferson County, Alabama, for a declaration that the instrument dated April 5, 1944 be declared the last will and testament of Hessie P. Perryman and entitled to probate and that the instrument dated July 31, 1944 be declared a nullity and not entitled to probate as the last will and testament of the deceased.

The following is a statement of the substance of the allegations of the bill as seems to us to be necessary for an understanding of the case.

Hessie P. Perryman died October 30, 1950, leaving as her sole heirs her husband Thomas I. Perryman and two brothers Sam Pugh and Thomas Pugh. Hessie P. Perryman and Thomas I. Perryman married about 26 years prior to the death of the deceased. On or about April 1, 1944 it was mutually agreed between Hessie P. Perryman and her husband Thomas I. Perryman that in consideration of Thomas I. Perryman making a will leaving all of the property that he might own at the time of his death to his wife and agreeing thereafter to place the title, so far as possible, to all property that he might purchase in their joint names and further agreeing at his expense to keep and maintain the homeplace, the title to which stood in her name, in a state of good repair and pay the taxes and insurance thereon, Hessie P. Perryman would make a will similar to that of Thomas I. Perryman leaving all of her property to him. It was further agreed that neither would revoke such will.

Pursuant to the aforesaid agreement Thomas I. Perryman and his wife on April 5, 1944, each duly and legally executed respectively a last will and testament whereby all the property owned by the one was bequeathed to the other. The two aforesaid wills were then placed in the custody of Thomas I. Perryman and he at all times thereafter kept them in a place of safety and at the time of the death of deceased, the two wills were in a safety deposit box of the American Bank & Trust Company at Bessemer, Alabama. A copy of the will made by Thomas I. Perryman to his wife which devised and bequeathed all his property to her, was attached as an exhibit to the bill and made a part thereof.

Relying upon the aforesaid agreement and the execution of the will by the decedent in his favor Thomas I. Perryman thereafter in every respect fully and completely performed the agreement until the death of the deceased. The bill shows in detail the manner in which he performed the agreement. We need not here set out these various details, it being sufficient to say that he carried out his agreement and at no time did he undertake in any way to repudiate the agreement made with his wife or to revoke the will which he had executed in her favor.

On July 31, 1944, Hessie P. Perryman without the knowledge or consent of her husband executed a written instrument purporting to be her last will and testament by which she undertook to revoke all wills theretofore made, which would include the aforesaid will in favor of her husband. In this latter instrument she undertook to give, devise and bequeath all of the property of which she might die seized and possessed to her brother Sam Pugh. Thomas I. Perryman did not know until the death of his wife of the existence of the instrument made by his wife in favor of her brother nor did he know his wife had breached her agreement with him by attempting to revoke the will in his favor. The will made by Hessie P. Perryman to her brother was delivered to her brother and he kept possession of the instrument until her death. She never in any way told or intimated to her husband that she had executed the written instrument in favor of her brother but during the years after the execution of the instrument in favor of her brother reaffirmed with her husband her agreement with him and the fact that they had protected each other as to the property in their respective names by virtue of the mutual wills.

Pretermitting consideration of the power of the Probate Court of Jefferson County to entertain a bill for a declaratory judgment under the provisions of § 181(1), Title 62, Code of 1940 (Pocket Part, p. 56), it will be observed that Thomas I. Perryman in the present proceeding is seeking (1) to have the court declare the will in favor of Sam Pugh inoperative and (2) to have the court declare the will in his favor as the last will and testament of his wife. Neither will has been admitted to probate.

A will is in its very nature ambulatory, subject to revocation during the life of the person who signed it and is revoked by the execution of another will, Allen v. Bromberg, 147 Ala. 317, 41 So. 771; Orr v. Helms, 217 Ala. 603, 117 So. 61, unless the will expressly negatives an intention to revoke the prior will. Wheat v. Wheat, 236 Ala. 52, 181 So. 243. While wills, as pointed out, are always revokable during testamentary capacity, deeds are irrevokable, and it sometimes becomes necessary to determine whether a...