Richter v. Richter

• Decision Date: 16 January 1913
• Citation: 60 So. 880,180 Ala. 218
• Parties: RICHTER ET AL. v. RICHTER.
• Court: Alabama Supreme Court

60 So. 880

180 Ala. 218

RICHTER ET AL. v. RICHTER.

Supreme Court of Alabama

January 16, 1913

Rehearing Denied Feb. 6, 1913.

Appeal from Chancery Court, Cullman County; W. H. Simpson Chancellor.

Suit by Sophia Richter against Herman Richter and another, executors of William Richter, Sr., deceased, and others. From a decree for complainant, defendants appeal. Affirmed.

Eyster & Eyster, of New Decatur, and George H. Parker, of Cullman for appellants.

J. B Brown, of Cullman, for appellee.

McCLELLAN J.

Sophia Richter is the widow of William Richter, Sr., who died August 24, 1909. That marriage was without issue. By a previous marriage he had eight children. These survived him and are his heirs at law. All were adults when Sophia Zitkov and Richter were married. The widow exhibited this bill against the appellants as executors of the probated will of William Richter, Sr., deceased, and against the eight heirs at law of the testator. Its theory and purpose was to remove the administration of the estate into the chancery court to enforce her alleged rights to personal and homestead exemptions in the estate left by the testator. The respondents assert that for a consideration she conveyed to the executors of the estate all such rights by a conveyance of date August 26, 1909. Her reply is that such conveyance was and is fraudulent and void; that it was the product of a design or purpose to overreach or defraud her of the rights to which she was justly entitled as the widow of the testator.

After a very brief acquaintance, testator and Sophia Zitkov were married May 29, 1903. A number, if not all, of Richter's children resented the marriage. Some of them protested against the issuance of the license to them.

On the day of the marriage Richter executed a will in which he provided for Sophia Zitkov, with whom he, it was recited, would contract marriage that day, a legacy of $400, the like sum being given thereby to each of his children; and, further, that each of said legacies should be derived from the real estate of the testator. In that will he also provided that, after the payment of those nine legacies, the remainder of the estate should be equally divided between the eight children and Sophia Zitkov. In this will Asa B. Fuller was named as executor.

On June 1, 1907, Richter executed another will. This instrument, with a codicil thereto not now important to consider in particular, was later probated. In the second item thereof it is provided: "I give, devise and bequeath to my wife, Sophia Richter ($400.00), four hundred dollars, and no more, no less." By the third item it is provided that the proceeds of his property, real, personal, and mixed, should be equally divided between his eight children. Herman and Willie Richter were named, and are now, the executors of the estate. This will expressly revoked all former wills executed by the testator.

On November 5, 1907, approximately five months after the execution of the last-mentioned will, Sophia Richter affixed her signature, in the presence of two attesting witnesses, to this instrument: "State of Alabama, Cullman County. This agreement witnesseth: That whereas the will of Wm. Richter, Sr., bequeathed the undersigned, Sophia Richter, as his wife, the sum of four hundred dollars, in full satisfaction and settlement of her interest in the estate of said Wm. Richter, Sr.: Now, the said Sophia Richter admits she is satisfied with said provision in said will, and agrees and binds herself to take and accept the said four hundred dollars in full satisfaction and settlement as aforesaid; and agrees to take the sum upon the decease of said Wm. Richter, Sr., in monthly payments of fifty dollars each beginning on the first of the month after his decease, or in a lump sum at the option of the executors of said estate."

As stated above, Richter died August 24, 1909. On August 26, 1909, Sophia Richter affixed her signature to a conveyance of all her interests and rights in and to every character of property of the estate of her deceased husband. This instrument was formally acknowledged before a notary public. The consideration recited is "four hundred dollars to me in hand paid by Herman Richter and Willie Richter as the executors of the estate of Wm. Richter, deceased." The transmission of title and right is "to the said Herman Richter and Willie Richter as executors of the estate of William Richter, Sr., heirs, administrators and assigns." This is also recited in the instrument: "And the said payment of said four hundred dollars being in full satisfaction of any legacy of said amount in the will of said deceased, William Richter, Sr., and of all and singular of any interest, claim or title in and to any part of his said estate situated, lying and being in Cullman county, state of Alabama." The habendum is: "To have and to hold unto them, the said executors, for the benefit of said estate, and to their successors, and assigns, forever, in fee simple. * * *" Then follows the usual warranty of title and for quiet enjoyment.

It is impracticable and undesirable to attempt an exhaustive discussion in the opinion of the evidence, and inferences therefrom, upon the issues of fact this litigation presents. It will and must suffice to treat the matters of diverse contention in a general and not particular manner--thus, in the main, setting down conclusions attained after careful consideration of every part and element of the evidence.

From the positive evidence upon the issue of Sophia's mental capacity or qualification to deal with the rights affected by the instrument of November 5, 1907, and that of August 26, 1909, in connection with the persistently evinced concern several of the testator's children manifested that what she was to do, or did do, was fully understood and appreciated by her when considering or negotiating to the end those instruments sought to conclude--a concern apparently shared by the husband upon the occasion of the signature of the instrument of November 5, 1907--the conclusion must be that the woman possessed a very limited natural capacity or qualification to exercise a judgment that would enable her to preserve her own rights in opposition to the greatly superior capacities and training of those adversely interested. When to this status of inferiority there is added the facts of her foreign birth, of her little knowledge of the English language, and of her evident want of appreciation of the legal rights to which, as wife and widow, she was entitled, it is too clear to admit of doubt that in the contest to reduce or minimize her participation in the benefits of the estate of Richter--a contest pressed, if not instituted, by children of her husband whose bounty would enhance pari passu with the diminution of her share of the estate--she was at least disadvantaged and markedly unequal.

From the evidence, in connection with the recitals of the papers of November 5, 1901, and August 26, 1909, it appears that those papers are to be read together as expressive of a purpose common to both. The former promised, as it were; the latter executed that promise, as it were. That of November 5, 1907, refers to the will of June 1, 1907. So the will of that date is evidently complementary to the later papers. The will of 1907, in so far as testamentary provision for Sophia is concerned, changes the testamentary purpose of the 1903 will by omitting Sophia from participation as one of the nine mentioned in the second item of the will of 1903. In both wills Sophia was given a legacy of $400, and this sum was paid to her on August 26, 1909. The testator thus manifested a change of purpose, as read from both his wills, with respect to bounty for his wife. Following the provision for this legacy in the will of 1907 are these words, "and no more, no less."

Exemptions of personalty and of homestead are not susceptible of being affected by testamentary disposition. They are creations of law and cannot be altered or defeated by testamentary provision. Hubbard v. Russell, 73 Ala. 578; Chandler v. Chandler,

87 Ala. 300, 303, 6 So. 153; Bell v. Bell, 84 Ala. 64, 4 So. 189.

The quoted words signify only that the $400 legacy was the exact measure of the testator's bounty to his wife. They are not to be taken as importing a purpose to attempt to thereby qualify or impair the stated legal rights to exemptions assured by law to the widow. And it may be here noted that, when those words are interpreted as they must be, the recitals in the opening sentences of the paper of November 5, 1907, setting forth that said legacy should be or was "in full satisfaction and settlement of her interest" in her husband's estate, were in opposition to the fact itself.

The instrument of November 5, 1907, was a nudum pactum, so far as exemptions were concerned. It rested on no consideration whatever. In point of fact, its premise was, as stated untrue. The will's provision to which it had reference had then been...