Richards v. Richards

• Decision Date: 11 April 1893
• Citation: Richards v. Richards, 98 Ala. 599, 12 So. 817 (Ala. 1893)
• Parties: RICHARDS ET AL. v. RICHARDS ET AL.
• Court: Alabama Supreme Court

12 So. 817

98 Ala. 599

RICHARDS ET AL. v. RICHARDS ET AL.

Supreme Court of Alabama

April 11, 1893

Appeal from chancery court, Chambers county; S. K. McSpadden Chancellor.

Bill filed by Thomas J. Richards and others against Thomas S Richards and others to obtain the sale of lands described therein for division. Decree rendered, dismissing the bill. Complainants appeal. Affirmed.

The ground of complainants' claim to the relief sought is that they are beneficiaries under the will of Thomas S Richards, deceased; but they do not directly aver that they fall within the class of persons who take under the will. The only averments in this behalf are as follows: "Orators further avert that one Thomas S. Richards was their ancestor and the ancestor of the parties named in the second paragraph hereof, [respondents;] that he died testate in Chambers county, Ala., about the year 1846, leaving a last will and testament, a copy of which is hereto attached as 'Exhibit A,' which said will was duly admitted to probate and record in the county court of said county, on the 12th day of October, 1846, which court had full jurisdiction in the premises; and the property described in the fifth item of said will was delivered to the wife and her children in accordance with the directions of said will, and said property was retained and held under the provisions of said will up to about the month of September, 1890, not quite one year ago, when Elizabeth Richards, widow of said testator died in said county, which fixed the period that all of the property mentioned in said fifth item of said will should be equally divided between all of them; that is, all of his children. *** Orators further aver that they, with the persons in said second paragraph named, are, under the provisions of said will, joint owners and tenants in common of the following described lands." The lands are then described. The fifth item of the will, which is copied in the opinion, constitutes the basis of the contention in this case. The bill prays for a construction of the will, and that, upon its being construed in favor of the complainants the chancellor will order a sale of the property for division among all the children of the testator. The defendants demurred to the bill on several grounds, among which were the following: (1) Because the bill shows that only the children of Elizabeth Richards, the last wife of the testator, are, under the provisions of the fifth item of the will, interested in the property, and the bill fails to show that the complainants are the descendants of Elizabeth Richards; (2) because the bill fails to show that complainants have any title to, or interest in, the property described in the bill; (3...