Scarbrough v. Scarbrough
| Decision Date | 06 February 1912 |
| Parties | SCARBROUGH v. SCARBROUGH ET AL. |
| Court | Alabama Supreme Court |
Appeal from Chancery Court, Calhoun County; W. W. Whiteside Chancellor.
Suit between Mamie S. Scarbrough and A. Lee Scarbrough and others. From the decree, the first-named party appeals. Affirmed.
Willett & Willett and Charles D. Kline, for appellant.
Lapsley & Arnold, for appellees.
Eba Scarbrough owned, on January 9, 1909, when he executed his last will and testament, an undivided half interest in a tract of land called the "Whisenant Plantation," lying in Calhoun and Etowah counties. William A. Scarbrough then owned the remaining undivided half interest therein. Subsequent to the execution of his will, Eba and William A Scarbrough sold the land for $20,000; the purchaser assuming the payment of a mortgage for $4,000, and also paying, in cash, $5,000. For the balance of the purchase money, viz $11,000, the purchaser gave three notes. Eba and William A Scarbrough each had a one-half interest in these notes. Through dealings between Eba and William A., the former became the owner of the interest of William A. in these notes. By the second item of Eba Scarbrough's will, Mamie Scarbrough, wife of William A., was devised the one undivided half interest Eba Scarbrough owned in the "Whisenant Plantation." There being no writing evincing a purpose to revoke the devise, the question propounded is: What is the interest, in amount, of Mamie Scarbrough in the fund represented by the three notes mentioned?
Code, § 6163, is as follows: "When any testator, after making his will, makes any contract for the conveyance of any property devised in such will, and the whole or any part of the purchase money remains unpaid to such testator at his death, the disposition of the property by such contract is not a revocation of the devise, at law or in equity, unless it clearly appears by the contract, or some other instrument in writing, to be intended as a revocation; and such property passes to such devisee, subject to the same remedies for a specific performance thereof, in favor of the persons entitled thereto, against the person to whom such devise was made, as might be had at law or in equity against the heirs of the testator, had the same descended to them; and the purchase money, when recovered by the executor of the testator, must be paid to the devisee of such property."
It is not necessary at this time to take other particular note of the statute than to refer to the...
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