Self v. Self
Citation | 212 Ala. 512,103 So. 591 |
Decision Date | 19 March 1925 |
Docket Number | 8 Div. 719 |
Parties | SELF et al. v. SELF et al. |
Court | Supreme Court of Alabama |
Appeal from Circuit Court, Morgan County; Osceola Kyle, Judge.
Bill in equity by Herbert F. Self and others against N.H. Self and others. From a decree overruling demurrer to the bill respondents appeal. Affirmed.
Wert & Hutson, of Decatur, for appellants.
Sample & Kilpatrick, of Hartsells, for appellees.
The bill as amended was for a sale for division of the lands among joint owners. To a decision on demurrer it was necessary to declare the legal effect of the instrument exhibited as a part of the bill--whether it was a will or a deed.
In Henderson v. Henderson, 210 Ala. 73, 92, 97 So. 353, it is declared that, in determining whether an instrument be a deed or a will, the controlling question is: Did the maker intend any estate or interest whatever to vest before his death, and by the execution of the paper?
The learned circuit judge precedes his decree with an opinion, from which we take the following:
"The bill as amended is demurred to on several grounds, and is now submitted for decree on that demurrer. If Exhibit A to the bill is to be construed as a deed, then the general demurrer for want of equity in the bill should be overruled; a general demurrer is available only where the bill fails to state any ground of equitable relief. Shannon v. Long, 180 Ala. 129, 60 So. 273; Moore v. Empire Land Co., 181 Ala. 344, 61 So. 940; Macke v. Macke, 200 Ala. 261, 76 So. 26; Birmingham T. & S. Co. v. Cannon, 204 Ala. 344, 85 So. 768.
But respondents insist that the paper writing shown by Exhibit A should be construed as a will, and not as a deed. That is the most important question raised by the demurrer; when the case was first before me on the demurrer to the original bill, in the opinion then written, I said:
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