Steele v. Crute

• Citation: 93 So. 694,208 Ala. 2
• Decision Date: 06 April 1922
• Docket Number: 8 Div. 410.
• Parties: STEELE v. CRUTE ET AL.
• Court: Alabama Supreme Court

93 So. 694

208 Ala. 2

STEELE v. CRUTE ET AL.

8 Div. 410.

Supreme Court of Alabama

April 6, 1922

Rehearing Denied May 11, 1922.

Appeal from Circuit Court, Madison County; Robert C. Brickell Judge.

Bill by Birdie Crute against Lizzie Louise Watkins, N. L. Steele, as Guardian of the estate of Lizzie Louise Watkins, Sadie Mae Miller, Ora Lee Vermilyea, and Bertha Patterson. From a decree for complainant N. L. Steele, as guardian, appeals. Affirmed.

Equity in applying the maxim, "he who comes into equity must come with clean hands," will not refuse its aid, even though the party has been guilty of unlawful or inequitable conduct, if it would prevent relief as to other parties in interest to whom the maxim has no application.

Birdie Crute filed her bill setting up the fact that certain lands in Madison county had been left to herself and other children by the will of Sallie S. Watkins, deceased; that certain improvement thereon had been undertaken by some of the heirs a loan having been procured from the respondent Bertha Patterson for the purpose; that said improvements stood uncompleted; that completion thereof was necessary to the preservation of the property of the estate; that an additional loan was necessary in order to complete such improvements. The prayer is for assumption of jurisdiction by the court, authorization of a loan, and issuance of certificates by the register.

The guardian denied the allegations of the bill, and demanded strict proof. A decree was entered granting relief prayed appointing a receiver to take charge of completing improvements. Upon completion the receiver petitioned for a sale of a part of the property for the purpose of discharging liens; and from a decree confirming such sale, the guardian alone appeals.

The will of Sallie S. Watkins, referred to in the opinion, reads in part as follows:

"Second:-I give, devise and bequeath all my real estate and personal property of whatever kind and description that I will hereinafter name to my six daughters, and only son, W. M. Watkins, to wit:-Mrs. Ora Lee Lord, Irene Scruggs Standard, Birdie Crute, Lizzie Louise Watkins,-Lucy Cabaniss Watkins,-Sadie Mae Miller, and W. M. Watkins, the real estate situated on the north side of Randolph street, and now occupied by me as a residence and the real estate situated on the south side of Commercial Row, and now occupied by me as my drug store, both pieces being in the city of Huntsville, Alabama, to be held and owned by my said six daughters, and only son, W. M. Watkins, jointly, share and share alike, till all of them marry or die.

"In the event, of the death of either before a final division, with or without issue, the share of such to descend to her surviving sisters, and brother, it being my desire and intention to the best of my ability, to insure a home and support for my said daughters and only son."

Edward T. Rice and N. L. Steele, both of Birmingham, for appellant.

R. E. Smith, of Hunstville, for appellees.

THOMAS J.

The bill was in chancery, and eventuated in the decrees from which the appeal is taken by the non compos mentis represented through and by a general guardian duly appointed, qualified, and acting.

The requirement for observation of chancery rule 75 is sufficiently shown by the record (page 33 1/2). Potts v. Court of Com'rs, 203 Ala. 300, 303, 82 So. 550; Blackburn v. Moore, 206 Ala. 335, 89 So. 745.

The application of common sense in the interpretation of wills has evolved cardinal rules of construction; the testator's intention, of legal, is the law of the instrument, and must be gathered from its four corners, having due regard for his manifest scheme, to ascertain its spirit as well as its letter, and if possible to make it form "one consistent whole" where the general and primary interest will prevail over a special or secondary interest that may appear to be to the contrary. If, however, the instrument or any provision therein is ambiguous, and it is believed by the court to be necessary to put itself as far as possible in the position of the testator, this may be done by taking into consideration the surrounding circumstances at the time testator made his will-as the mode of his living and thought, his relations to or association with the objects of his bounty, or to those who by nature or nurture should be the objects of his solicitude, care, or bounty; their age, condition, dependence, and the like; and it is presumed (it not appearing to the contrary in the will) that the testator had in view the interests of legatees or devisees who are made objects of his bounty. Fowlkes v. Clay, 205 Ala. 523, 88 So. 651; Castleberry v. Stringer, 176 Ala. 250, 57 So. 849; Jemison v. Brasher, 202 Ala. 578, 81 So. 80; Rutland v. Emanuel, 202 Ala. 269, 80 So. 107; Mims v. Davis, 197 Ala. 88, 72 So. 344; Echols v. Jordan, 39 Ala. 24, 29; Travis v. Morrison, 28 Ala. 494; Moore v. Moore, 18 Ala. 242.

Where the words of a will, aided by evidence of material facts, as we have indicated, may be so aided, are insufficient to determine testator's meaning, no evidence will be admissible to prove what the testator intended, and the instrument is void for uncertainty. Wigram on Wills (1872) p. 175, prop. VI, and page 188 et seq., prop. VII.

When the non compos mentis is duly brought before the court as a party, and also her legal guardian, the appeal may be prosecuted and errors assigned. Before her interest in the properties made the subject of the instant bill can be sold, or its character changed by reinvestment of reconstruction, it must be manifest to the court that such changed condition, construction, or investment was necessary to protect her interest in the property, or that her interest therein would be promoted thereby. The necessities of the case are not different when the estate or interest therein has been changed or affected by the unauthorized acts of others; the acquiescence and ratification vel non must be by the exercise of the judgment and conscience of a court of equity in protecting the estate or interest of the ward. Such is the analogy contained in Martin v. Barnett, 205 Ala. 220, 87 So. 324; Culley v. Elford, 187 Ala. 165, 174, 65 So. 381; McCreary v. Billing, 176 Ala. 314, 58 So. 311, Ann. Cas. 1915A, 561; Gassenheimer v. Gassenheimer, 108 Ala. 651, 653, 18 So. 520; Ex parte Jewett, 16 Ala. 409-in the exercise of the plenary powers over the estate of infants brought in the jurisdiction of a court of equity. The reason underlying the decisions indicates the same rule or guide will aid a court of equity when the estate of lunatics is made the subject of litigation, and where the owner suffering such disability is made a proper party therein-that the court will exercise a general supervision or control over such interests for the benefit of the non compos mentis. Pearce v. Pearce, 199 Ala. 491, 506, 74 So. 952; Murphree v. Hanson, 197 Ala. 246, 252, 72 So. 437; Pearce v. Pearce, 136 Ala. 188, 190, 33 So. 883; Proctor v. Scharpff, 80 Ala. 227, 229, 230; Lee v. Lee, 55 Ala. 590, 599, 600; Kavanaugh v. Thompson, 16 Ala. 817, 827.

Although Mr. Chief Justice Brickell said in Gassenheimer v. Gassenheimer, supra:

"*** The jurisdiction should be exercised sparingly and with the utmost caution. Though in form the proceedings may be adversary, they are often instituted and conducted by parties of interests adverse to the interests of the infant, for the promotion and advancement of such interests, rather than of the interests of the infant, and the court while intending to protect, may be made the instrument of injustice to him"

-the governing principle underlying the jurisdiction and power of a court of equity in such cases was unchanged.

The pleadings sufficiently recite the interest of Lizzie Louise Watkins (Winters) in the property, her insanity, and representation by general guardian duly appointed, qualified, and acting, as party respondent in answer "demanding strict proof." The other necessary parties in interest, and an administrator ad litem of the estate of testator, were before the court. As to the last-named representative, it is recited that the estate of testator owed no debts; there was no necessity for further representation by an administrator de bonis non to protect the interests of the estate as such or creditors.

Where all necessary parties at interest are before the court ( Winsett v. Winsett, 203 Ala. 373, 83 So. 117), the decree or final judgment rendered will conclude the rights of the parties within the issue of the pleadings. Terrell v. Nelson, 199 Ala. 436, 74 So. 929. If, however, the record affirmatively shows the lack of necessary parties, the court must take the objection ex mero motu. Hodge v. Joy (Ala. Sup.) 92 So. 171.

Having provided in the second section of the will that, "in the event of the death of either [children, we interpolate] before a final division, with or without issue, the share of such to descend to her surviving sisters, and brother," it is important to inquire whether the averments of the bill were sufficient to show that the legal title was before the court. It is averred that "on the 9th day of February 1920, the said William M. Watkins departed this life, and on the 12th day of February, 1920, the said Irene Scruggs Stanard departed this life," they being respective legatees and devisees named in the last will of Mrs. Sallie S. Watkins. It is not averred that Williams M. Watkins was or was not married, nor that Mrs. Irene Scruggs Stanard was without issue at the time of her death. In the testimony of Birdie Crute it is recited that she and her sister, Irene Scruggs Stanard, and her husband, John C. Stanard, with others of the joint owners, executed a mortgage of date November 26, 1919, to...