Smith v. McNaughton
| Decision Date | 21 December 1979 |
| Citation | 378 So.2d 703 |
| Parties | Johnny Lee English SMITH et al. v. Clara McNAUGHTON et al. 78-294. |
| Court | Alabama Supreme Court |
John A. Taber, of Williamson & Taber, Greenville, Everette A. Price, Jr., Brewton, for appellants.
Elisha C. Poole, of Poole & Poole, Greenville, for appellees.
This is a land partition case. All the parties to the suit were joint owners and tenants in common by inheritance of approximately 520 acres of land lying in Butler and Conecuh Counties, less an undivided three-quarters interest in and to all oil, gas and minerals on 280 of those acres. Clara E. McNaughton and others filed suit in the Circuit Court of Butler County seeking a sale for division of the land. Leroy English and others filed answers requesting that the land be partitioned instead of sold. The pending administration of the estate of Abbie English, former life tenant of the property, was transferred from probate court to circuit court and consolidated with this action. The court appointed an appraiser for the property, James M. Vardaman & Co., Inc., which was ordered to submit a plan for its division. The proposed plan called for the various houses on the property to be set off and sold, the remaining land to be divided into roughly equal plots ranging in size from 48.7 to 80 acres, a portion of the timber to be sold and proceeds used to equalize the value of the individual shares. This plan was approved by the court over the objections of appellant Leroy English.
On appeal, Leroy English raises the following issues: 1) Was the partition in kind ordered by the trial court inequitable because the lots as divided differ in size, value and road frontage, and because the appraiser failed to take into account the value of mineral rights? 2) Did the court err in refusing to allow Leroy English administrator's fees for expenses incurred in his capacity as administrator of the estate of his mother, Abbie English? and 3) Did the court err in denying Leroy English's claim for reimbursement for taxes paid by him on the property during his mother's lifetime?
For the reasons stated herein, we find no error in the trial court's determination of the second and third issues, but agree with appellant that the failure of the court to take into account mineral interests when adopting the plan for division prepared by the appraiser resulted in an inequitable apportionment of those interests.
In upholding the court's resolution of issues two and three, we invoke the oft repeated rule of ore tenus: Where the trial court makes a decree after hearing the witnesses ore tenus, every presumption will be indulged in favor of the trial court and its finding will not be disturbed unless palpably wrong. Shivers v....
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IN RE SHARPE
...case, will not be overturned on appeal unless they are unsupported by the evidence or are plainly and palpably erroneous. Smith v. McNaughton, 378 So.2d 703 (Ala.1979). In the present case, the evidence presented by Mrs. Lee sufficiently establishes the existence and terms of a reasonable c......
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Wehle v. Bradley, 1101290.
...is to be determined according to the circumstances of each particular case.’ ” Armstrong, 404 So.2d at 676 (quoting Smith v. McNaughton, 378 So.2d 703, 704–05 (Ala.1979) ). In determining whether the trial court exceeded its discretion as to a compensation award under § 43–2–848(a), we must......
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Wehle v. Bradley
...is to be determined according to the circumstances of each particular case.'" Armstrong, 404 So. 2d at 676 (quoting Smith v. McNaughton, 378 So. 2d 703, 704-05 (Ala. 1979)). In determining whether the trial court exceeded its discretion as to a compensation award under § 43-2-848(a), we mus......
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Ex parte Taylor Coal Co., Inc.
...trial court found that there was prejudice to the other party and we cannot say that its conclusion was palpably wrong. Smith v. McNaughton, 378 So.2d 703 (Ala.1979); Gertz v. Allen, 376 So.2d 695 Having concluded that there was no violation of Canons 4 and 9, Code of Professional Responsib......