Roberts v. Roberts
| Decision Date | 13 August 1959 |
| Docket Number | 4 Div. 940 |
| Citation | 269 Ala. 441,114 So.2d 139 |
| Parties | Fannie Mae ROBERTS v. J. A. ROBERTS et al. |
| Court | Alabama Supreme Court |
John C. Walters, Troy, for appellant.
Chas. O. Stokes, Ozark, for appellees.
Fannie Mae Roberts, the appellant, filed her bill of complaint in the Circuit Court of Dale County, Alabama, in Equity, to construe the will of W. H. Roberts, deceased. She alleged that W. H. Roberts, deceased, left no children surviving him, and that she was one of the heirs at law of W. H. Roberts, deceased. The other heirs at law of W. H. Roberts, deceased, and the heirs of Cora Roberts, the deceased wife of W. H. Roberts, deceased, were made parties respondent to the bill, as was the administrator, with the will annexed, of the estate of W. H. Roberts, deceased. The bill alleged, in substance, that W. H. Roberts died in January, 1957, leaving a last will and testament in which he named his wife, Cora Roberts, as the sole beneficiary, subject to the provisions of Item Three of said will (a copy of the will was exhibited to the bill of complaint); that some days after the death of said W. H. Roberts, and before his will was admitted to probate, Cora Roberts died; that thereafter, the will was offered for probate by the person having custody of same, and, after notice was given to all the next of kin of W. H. Roberts, deceased, the will was duly admitted to probate in the Probate Court of Dale County, Alabama, as the last will and testament of W. H. Roberts, deceased.
The will, after providing for the payment of debts and funeral expenses, contained the following provisions:
'Second
'I do hereby give, will, devise and bequeath unto my beloved wife, Cora Roberts, all of my property, real, personaly, and mixed, of every kind and description to be hers absolutely to do with as she sees fit;
'Third
(Emphasis supplied.)
The bill further alleges that the heirs at law of W. H. Roberts, deceased, are entitled to his property, and that the provision 'It is my desire that upon my death, this instrument be probated as my last will and testament in order to vest title to my property in said beloved wife, Cora Roberts' is a condition precedent to the vesting of title in Cora Roberts; that on the other hand the heirs of Cora Roberts insist that title to the property did vest in Cora Roberts, and upon her death descended to the heirs at law of Cora Roberts; and that, therefore, there is a justiciable controversy as to whether the property descends to the heirs at law of W. H. Roberts or to the heirs of Cora Roberts.
Demurrers were interposed to the bill of complaint and sustained, hence, this appeal.
The only question with which this court will concern itself on this appeal is whether or not the trial court was in error in sustaining the demurrer to the bill of complaint filed under the declaratory judgment act. Title 7, Secs. 156, 157, 159, Code of 1940.
Ordinarily where the bill for a declaratory judgment shows a bona fide justiciable controversy which should be settled, the demurrer thereto should be overruled and a declaration of rights made and entered only after answer and on such evidence as the parties may deem proper to introduce on submission for final decree. City of Bessemer v. Bessemer Theatres, 252 Ala. 117, 39 So.2d 658; Evers v. City of Dadeville, 258 Ala. 53, 61 So.2d 78; White v. Manassa, 252 Ala. 396, 41 So.2d 395; Percoff v. Solomon, 259 Ala. 482, 67 So.2d 31, 38 A.L.R.2d 1100; Water-Works & Sanitary Sewer Board v. Dean, 260 Ala. 221, 69 So.2d 704; Curjel v. Ash, 261 Ala. 42, 72 So.2d 732; Mobile Battle House v. City of Mobile, 262 Ala. 270, 78 So.2d 642.
The principal question for determination on this appeal is whether the will of W. H. Roberts, deceased, is so clear and unambiguous that it needs no construction. If so, there is no need for construction. Lee v. Shivers, 70 Ala. 288; City Bank & Trust Co. v. McCaa, 213 Ala. 579, ...
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