Sims v. Hipp

• Decision Date: 28 April 1927
• Docket Number: 1 Div. 425
• Parties: SIMS et al. v. HIPP.
• Court: Alabama Supreme Court

113 So. 296

216 Ala. 439

SIMS et al. v. HIPP.

1 Div. 425

Supreme Court of Alabama

April 28, 1927

Rehearing Denied June 23, 1927

Appeal from Circuit Court, Monroe County; John D. Leigh, Judge.

Bill in equity by Susan E. Hipp against Mrs. N.A. Sims, individually and as administratrix of the estate of J.T. Sims, deceased and others, to declare and establish a resulting trust. From a decree for complainant, respondents appeal. Affirmed.

Gardner J., dissenting.

Hybart & Hare, of Monroeville, and Coleman, Coleman, Spain &amp Stewart, of Birmingham, for appellants.

J.D Ratcliffe, of Monroeville, for appellee.

GARDNER J.

Appellee is the sister of J.T. Sims, deceased, and filed this bill against his heirs at law and his widow individually, and as administratrix of the estate, seeking to establish a resulting trust in certain lands in Monroe county, to which deed was executed in the name of said J.T. Sims only.

The suit is based upon the theory that the property was bought by J.T. Sims for complainant and himself jointly, each equally interested and each contributing one-half the purchase money--the deed being taken in the name of J.T. Sims alone, without complainant's knowledge or consent, and discovery of which was not made until a short time before his death.

Complainant and her said brother lived on the premises for a long number of years, occupying separate houses and cultivating separate tracts, until August 20, 1919, when J.T. Sims sold the property to W.S. Bowden, Jr., for a consideration of $8,000, $100 of which was paid in cash, and for the remainder of $7,900 Bowden executed his mortgage on the property in favor of Sims. In October, 1919, Bowden paid Sims $3,900, of which sum complainant was paid $1,000. The balance remaining due on this mortgage was paid complainant as administratrix of said estate, subsequent to the filing of the bill in this cause.

Upon consideration of the cause for final decree on pleadings and proof, the chancellor found that the case for a resulting trust was sufficiently established by the proof. We recognize the strict requirements of the law in respect to the burden of proof resting upon complainants in cases of this character. Bibb v. Hunter, 79 Ala. 351; Heflin v. Heflin, 208 Ala. 69, 93 So. 719; Allen v. Caylor, 120 Ala. 251, 24 So. 512, 74 Am.St.Rep. 31; Watkins v. Carter, 164 Ala. 456, 51 So. 318; Harton v. Amason, 195 Ala. 594, 71 So. 180; Sanders v. Steele, 124 Ala. 415, 26 So. 882.

The learned chancellor has in his opinion reviewed the salient features of the evidence, and a discussion thereof here would serve no useful purpose. We content ourselves with the statement that, upon due consideration of all the facts and circumstances, we find ourselves in accord with the conclusion of the trial court as to this phase of the case, the establishment by complainant of a resulting trust. The court, however, rendered a decree only against Mrs. Sims as administratrix of the estate of J.T. Sims, deceased, and it is here strenuously insisted that such a decree against her in her capacity as administratrix is erroneous. Though there are authorities to the contrary (note to Probate Court v. Williams, 19 Ann.Cas. 554), and as recognized in Campbell v. Amer. Bonding Co., 172 Ala. 458, 55 So. 306, the rule established in this state is to confine the accountability of the administrator in his representative capacity to assets of the estate of his decedent. Campbell v. Amer. Bonding Co., supra; Spotswood v. Bentley, 132 Ala. 266, 31 So. 445; Burdine v. Roper, 7 Ala. 466; Perkins v. Lewis, 41 Ala. 649, 94 Am.Dec. 616; Jackson v. Wilson, 117 Ala. 432, 23 So. 521; Goodson v. Liles, 209 Ala. 335, 96 So. 262; Daniel v. Baldwin, 148 Ala. 292, 40 So. 421.

In Bartlett v. Jenkins, 213 Ala. 510, 105 So. 654, is found the following excerpt taken from Weeks v. Love, 19 Ala. 27:

"It is too well settled to require the citation of authority, that an administrator cannot by any act of his create a right of action against the estate he represents, however he may subject himself to personal liability."

Counsel for appellee places much stress upon Pryor v. Davis, 109 Ala. 117, 119 So. 440. The point of differentiation of that case and this, however, lies in the fact that in Pryor v. Davis the decedent had in his life commingled the trust funds with his own, thus converting himself into a debtor instead of a trustee. Such is not the situation here presented. First, J.T. Sims held one-half interest in the property in trust for complainant by deed thereto in his own name, and subsequently held a like interest in trust for her in the mortgage on the lands executed to him alone. The interest was not commingled, but was readily identified in one form as well as in the other. The following language, therefore, from Pryor v. Davis, supra, is here applicable:

"If the funds the intestate received in his relation of trustee had been preserved, distinguishable from his own funds, capable of identification, they would not have passed to the personal representative as assets for administration. His duty in reference to them would have been that of a depositary--the custody and preservation of them in their condition of identification, and the delivery of them on demand of the succeeding trustee or assignee."

It results, therefore, as our conclusion, that complainant's portion of the proceeds of the Bowden mortgage were not assets of the estate of J.T. Sims, deceased, but constituted trust funds wrongfully disposed of by respondent Mrs. N.A. Sims after the filing of this bill in her capacity as an individual, and for which she is individually liable, but not in her capacity as administratrix. Weeks v. Love, supra; Bartlett v. Jenkins, supra. This administratrix,...