Riley v. Wilkinson

Decision Date20 December 1945
Docket Number6 Div. 362.
Citation247 Ala. 579,25 So.2d 384
PartiesRILEY et al. v. WILKINSON.
CourtAlabama Supreme Court

Rehearing Denied April 4, 1946.

Horace C. Wilkinson, of Birmingham, for appellants.

Bradley Baldwin, All & White, of Birmingham, for appellees.

LIVINGSTON, Justice.

This is an appeal from a decree rendered by the Circuit Court of Jefferson County, in Equity, overruling demurrers of J. P Mudd, Mrs. Marguerite Mudd, Mrs. Dimmis Riley and the Western Grain Company, a corporation, to a petition, as last amended, filed on February 5, 1944 (known and referred to as the February 5th petition), by Mrs. Elizabeth W. Lanier, Edward Wilkinson, Jr., individually and in his capacity as executor of the will of Edward Wilkinson, deceased, and as trustee thereunder. The February 5th petition is another phase of the litigation growing out of the administration of the estate of Edward Wilkinson, deceased. See, Mrs. Dimmis W. Riley et al. v. Edward Wilkinson, Jr., et al., Ala.Sup., 23 So.2d 582; Edward Wilkinson, Jr., Ex'r, v. Bethea McCall, Co-Ex'r, Ala.Sup., 23 So.2d 577; Ex parte Mrs. Dimmis Riley, Ala.Sup., 23 So.2d 592; J. P. Mudd et al. v. Sterling Lanier, III, et al., Ala.Sup., 24 So.2d 550.

In 1943 the estate tax return was filed with the United States Government and the Government entered a deficiency estate tax assessment for an additional payment of some $52,000. On October 16, 1943, a petition was filed by the co-executors asking the court for instructions as to how to meet the payment of the deficiency assessment. Pending the hearing of the petition, a deputy collector seized certificate No. 38 for one hundred and fifty shares and certificate No. 41 for one share of the common stock of Western Grain Company, which certificates were issued to Edward Wilkinson, deceased, during his lifetime, and which were in the custody of Western Grain Company or Bethea McCall, as co-executor, at the time they were seized. These certificates had been previously surrendered to the Western Grain Company after the death of Edward Wilkinson, and before they were seized, in exchange for a new certificate numbered 71 for one hundred and fifty-one shares of common stock of Western Grain Company. Certificate No. 71 was issued to the co-executors and co-trustees at that time. Certificate No. 71 was never seized by the collector.

On January 20, 1944, and in the matter of the petition asking the court for instructions as to how to meet the deficiency assessment, the court entered a final decree which provided a plan for raising the money to meet the payment of the deficiency assessment through a sale of common stock of the Western Grain Company, and enjoined disposition of the stock on a basis at variance with the decree.

The presiding judge in his decree expressed the view that the stock should not be sold for less than $1100 per share, and that no more than forty-seven shares should be sold: all to raise a sum of between $50,000 and $55,000. That decree appears in full in the record on the appeal in Dimmis W. Riley et al. v. Edward Wilkinson, Jr., et al., beginning on page 92 and extending to page 102, and in M.R. No. 1 at page 285.

The same day the decree was superseded by a supersedeas bond and the next day Bethea McCall, a co-executor, and Mrs. Mudd entered into a contract by which, among other things, Mrs. Mudd agreed to purchase one hundred and fifty-one shares of common stock of the Western Grain Company on a basis set out in the contract. It was to set aside and cancel this contract between McCall and Mrs. Mudd that the petition of February 5, 1944 (the petition now considered) was filed.

It is first insisted that Edward Wilkinson, Jr., and Mrs. Elizabeth Lanier have only a contingent interest in the trust estate generally as it shall exist on the day of distribution and no interest in the one hundred and fifty-one shares of stock itself, and that a remote contingent remainderman cannot maintain a petition to cancel a contract made by the executor of the estate of decedent.

The argument in support of that insistence was refuted, and a like insistence denied in another phase of this same litigation, and we see no good reason to repeat here what was there said. See, J. P. Mudd et al. v. Sterling Lanier, III, et al., Ala.Sup., 24 So.2d 550.

Under analogous principles Edward Wilkinson, Jr., as executor and trustee, has a right to maintain the instant petition.

The features of the decree of January 20, 1944, which seem to be proper to mention are as follows:

In paragraph numbered 'Fourth' thereof, that: 'The executors are hereby authorized and directed to sell a sufficient number of shares of the common stock of the company held by the estate of the decedent to yield an amount not less than $51,700, and not more than $55,000, the sale to be made in the following manner: at 11 o'clock A. M., on Friday, January 21, 1944, the executors shall offer said stock for sale in this court in the presence of the special judge, and sell the same to the highest and best bidder for cash. The highest and best bidder shall be the person who offers the highest price per share for such stock, unless two or more bidders offer the same price per share, in which case the bidder who offers to buy the larger number of full shares (within said limit as to maximum price) shall be deemed the highest and best bidder. No fractional share shall be sold.' And in the 'Seventh' paragraph thereof that: 'If this decree is superseded or if the operation of section fourth, fifth and sixth hereof, or any material part thereof is otherwise stayed or suspended, or if either executor fails or refuses to join in the execution of said sections fourth, fifth and sixth, or any material part thereof, then in any such event, this decree shall be without prejudice to, and shall not be construed to prevent, the exercise of any power or authority conferred by the will of the decedent upon the executors, as executors of the will of the decedent or as trustees thereunder or both, or upon either of said executors and trustees, in whatever capacity he or they may act, or any power or authority which the executors and trustees or either of them may enjoy or exercise under the law regulating the administration of estates and trusts in the absence of express power conferred by the will or by decree of this court, in order to enable them, or either of them, to deal with the emergency situation now confronting the estate, with respect to said estate taxes and assessments. * * * Nevertheless, the said executors and trustees, to-wit, Bethea McCall and Edward Wilkinson, Jr., are, and each of them separately is hereby forever enjoined from doing any act, acting jointly or alone, directed towards accomplishing the purpose of raising the funds with which to pay said jeopardy assessment and from making any announcement sale, loan or agreement for such purpose upon any terms more favorable, in case of private sale, than those set forth in sections fourth, fifth and sixth.' And in the 'ninth' paragraph thereof, that: 'This decree shall be effective at 11 o'clock A. M. on January 21st, 1944, unless prior thereto the same shall have been superseded. In case Mrs. Marguerite W. Mudd desires to supersede this decree, she may do so upon making a supersedeas bond with the surety hereinafter named or other surety satisfactory to the register in the penal sum of $150,000. * * * In the event the guardian of Mrs. Dimmis Riley, J. P. Mudd, Jr., or either or all of the minors, decide to supersede this decree, the register may accept a bond signed by Joseph P. Mudd and Mrs. Marguerite W. Mudd, as sureties.'

The questions here involved are controlled by the further question of whether the decree was operative in the respect here material after a supersedeas appeal had been taken by Mrs. Riley under the provisions of the decree we have copied, and therefore whether the court had authority to give directions to the executors effective after such appeal.

The instant petition alleges that on January 20, 1944, an appeal was taken from that decree by the execution of a supersedeas bond as provided in the decree. No allegation is made that Mrs. Mudd or McCall joined in the appeal or executed a supersedeas bond. It is alleged that Bethea McCall executed an instrument in writing, signed by him as one of the executors of the estate of Edward Wilkinson, Sr., deceased, for the estate and for him and Edward Wilkinson, Jr., as executors of the estate, whereby he undertook to sell, transfer, and assign to Mrs. Marguerite Mudd one hundred and fifty-one shares of the common stock of the Western Grain Company, owned by Edward Wilkinson, Sr., deceased, in his lifetime for the sum of $105,700, which is $700 per share. This contract appears to be in violation of the injunction contained in the decree of January 20, 1944, if that injunction was in effect at the time the contract of sale above mentioned was entered into.

Meaning of the Decree as Here Material.

We take the provision in the decree of January 20, 1944, that it shall be effective at 11 o'clock A. M. on January 21, 1944, unless prior thereto it shall have been superseded, to mean that the sale so ordered shall not be conducted until then, so that the parties shall have until that time in which to appeal by supersedeas and thereby suspend the sale, but that the effective date of the prohibitory order as elsewhere fixed is not deferred. This we think is manifest from a consideration of all the features of the decree.

By the provisions of section 'seventh' of the decree, as we have copied it, if it is superseded, the executors are not thereby precluded from exercising any of their powers to enable them to deal with the emergency situation then...

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6 cases
  • Western Grain Co. Cases, 6 Div. 374
    • United States
    • Supreme Court of Alabama
    • February 3, 1955
    ....... Further Rehearing Denied Feb. 10, 1956. .         [264 Ala. 150] . Page 400 . Pending administration of the estate of Edward Wilkinson, Sr., deceased, and after transfer from the probate court to the circuit court, in equity, certain of the parties in interest filed a bill for relief ...Grace H. Wilkinson, Mrs. Elizabeth Wilkinson Lanier, Mrs. Dimmis Riley, Mrs. Marguerite Wilkinson Mudd or Edward Wilkinson, Jr., for any trustee or co-trustee of the said several trusts, or any executor or co-executor of ......
  • Riley v. Bradley, 6 Div. 672.
    • United States
    • Supreme Court of Alabama
    • April 22, 1948
    ...... to sit as a Special Justice of said Court in the. determination of said case. Code 1940, Tit. 13, § 15. . . FOSTER,. Justice. . . This. suit is collateral to others relating to the administration. of the estate of [252 Ala. 286] Edward Wilkinson, Sr.,. deceased, who died November 6, 1941, leaving a widow and four. children, naming two of them, Edward Wilkinson, Jr., and. Elizabeth Wilkinson Lanier, executors of his will. Much. litigation has been conducted in respect to various aspects. of their controversy. Much of it has been ......
  • Berryhill v. Gibson, Civ. A. No. 3339-N.
    • United States
    • United States District Courts. 11th Circuit. Middle District of Alabama
    • September 3, 1971
    ...to effect a suspension, ordinarily suspends the judgment without such a bond. Ex parte Cudd, 195 Ala. 80, 70 So. 721; Riley v. Wilkinson, 247 Ala. 579, 25 So.2d 384. Note the evolution of the law associated therewith discussed at 4 Am.Jur. 2d 839, Appeal and Error, § Nonetheless, this Court......
  • Ex parte May, 4 Div. 628
    • United States
    • Supreme Court of Alabama
    • December 14, 1950
    ...in so concluding, this respondent relied upon the following authorities (citing them).' The respondent relied upon Riley v. Wilkinson, 247 Ala. 579, 25 So.2d 384, 385, holding that an 'appeal from a judgment where statute does not require a supersedeas bond to effect a suspension ordinarily......
  • Request a trial to view additional results

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