Appeal
from circuit court, Barbour county; William A. Anderson
Judge.
Ejectment
by W. D. Andrews and another, as executors of the last will
and testament of William A. Andrews, deceased, against John
Collier. On suggestion that said Collier was in possession as
tenant of L. A. Russell, the latter was made a defendant.
There was a judgment for plaintiffs, and defendant Russell
appeals. Reversed.
The
cause was submitted for trial upon an agreed statement of
facts. It appeared in this statement, that W. A. Andrews died
in the year 1881, leaving a last will and testament. The
provisions of the will material to this case are sufficiently
stated in the opinion, with the exception of the seventh and
eighth paragraphs, which are as follows: "Paragraph
Seven. When my youngest child arrives at the age of
twenty-one years, or when all of my children shall have
married, then in either of said events my executrix and
executor are directed to sell all of the real and personal
property then held by them as such; except the home provided
for my said wife and children by paragraph two of this my
will, unless my said wife is then dead or some of my said
children are minors or unmarried, on such terms as they may
select, either for cash, or part cash and part on credit or
wholly on credit; but if on credit then such credit shall not
be over two years, and notes with security to be approved by
them to be given by the purchaser or purchasers of said
property. And the proceeds of said sale when all are
collected shall be distributed by my said executrix and
executor as follows: First. My said wife as to said
distribution to be considered as one of my children and to
receive a child's share of said proceeds absolutely and
in her own right. And if a child's share so to be
received by her does not amount to the sum of five thousand
dollars, then and in that event, I direct my executrix and
executor after deducting her share as above stated from said
proceeds of sale, to take from the remainder of said proceeds
of sale, an amount of money which with the amount of the
child's share to be received by my said wife as herein
stated absolutely, will make said sum of five thousand
dollars. And said sum so taken to make up said sum of five
thousand dollars, shall be invested by my executrix and
executor in real or personal property and titles to such
property taken in their names, and the rents, incomes, and
profits of said property as they may accrue, to be paid over
to my said wife during her lifetime. Second. The balance of
said proceeds of said sale to be distributed equitably among
all of my children, including my daughter Dora and my son
William D., provided, however, that such child or children
who shall have received an advance under paragraph six of
this my will, shall on said distribution be charged up with
such advance, and the legal interest thereon from the time
said advance was so received, as a portion of such child or
children's distributive share in my said estate. And such
child or children so receiving said advance shall not be
entitled to receive any further advance on his or her share
until the child or children who have not received any advance
or who have not received the full amount of said advance
shall receive a sum of said proceeds of sale which taken by
itself or being added to the amount which may have been
previously advanced to her or him, including interest from
the time said advance was so made, shall make all of said
children equal, and then after all have been made equal, the
balance to be distributed between them share and share alike.
"Paragraph
Eight. If at the time said sale of the real and personal
property is authorized to be made by executrix and executor
under paragraph seven of this my will, my wife is still
living, then my said executrix and executor are not to sell
the house and tract of land to be provided for my said wife
under paragraph second of this my will, but on the death of
my said wife, if her said death occurs subsequently to the
sale authorized under paragraph seven of this my will, my
surviving executor is authorized and directed to sell said
tract of land so provided for a house, and also the property
in which the surplus to make up the sum of five thousand
dollars was invested as by paragraph seven of this my will
as he may deem best, but not on a credit of over twelve
months. And the proceeds of said sale to be distributed
between my children equitably and as directed by this
paragraph of this my will."
After
setting out the will at length, the agreed statement of facts
then continues as follows: "The will was regularly
probated in Barbour county, Alabama, on the _____ day of
_____, 1881, and L. E. Andrews and W. D. Andrews entered upon
their duties as executrix and executor of said will and are
still acting in that capacity, the will not having yet been
fully executed. Under the provisions of the will Dora Russell
and her husband, L. A. Russell, entered into the possession
of the lands sued for, the same being the residence and the
eighty acres of the home place mentioned in said will, and in
the year 1884, moved away from said lands and rented them to
a tenant and received the rent therefrom. On February 11
1885, Dora Russell died leaving surviving her, her husband
L. A. Russell, the defendant in this cause, and a son, James
Alfred Russell. L. A. Russell for his said son continued to
rent out said lands and receive the rents therefrom till
August 10, 1895, when his said son, James Alfred Russell,
died. L. A. Russell continued to rent out the lands till this
suit was brought against his tenant John Collier and upon
motion of L. A. Russell he is let in to defend." This
was all the evidence in this case. Thereupon the court at the
request of the plaintiffs, gave to the jury the following
written charge: ...
