Tatum v. Tatum

• Decision Date: 28 May 1896
• Citation: 20 So. 341,111 Ala. 209
• Parties: TATUM v. TATUM ET AL.
• Court: Alabama Supreme Court

20 So. 341

111 Ala. 209

TATUM v. TATUM ET AL.

Supreme Court of Alabama

May 28, 1896

Appeal from city court of Montgomery; John G. Winter, Judge.

Bill by Heywood Tatum against Edmund Tatum and others to set aside a settlement of property on defendants, made by plaintiff as trustee under the will of Berry Tatum, deceased. From a judgment sustaining a demurrer to the bill, complainant appeals. Affirmed.

J. M Chilton, for appellant.

Gordon Macdonald, for appellees.

COLEMAN J.

The will of Berry Tatum, Sr., contains the following provision "Item 4. The rest and residue of my estate I direct shall be divided into five parts, one part to my son Heywood Tatum for himself, and one part to my son Heywood in trust to have and to hold, and manage and apply to the uses and benefit of the family of his brother Berry Tatum, as long as my said son Heywood shall live, or desire and be willing to discharge this trust; and whenever he desires, he can make such statements or settlements for the interest and benefit of his said brother's family or children, or any member or members of said family, as he thinks best, giving him full discretion as to the share each shall have, or whether it shall be given to some or all, and the portions to be given to each. And in the event of the death of my said son Heywood without making such settlement, I will that the share so held in trust shall vest in and belong to the children of my son Berry Tatum then living, in fee simple, and deceased child's children taking the share the parent would have been entitled to if living; and, in default of children or their descendants then living, to my said son Berry if living, and, if not, then to my heirs." In execution of the trust and power conferred in said item 4 of the will, and at his instance and request, by proceedings had in the city court of Montgomery county sitting in equity, the said Heywood Tatum made known and declared that he had selected Edmund Tatum and Clarke Tatum, and such other children as might be thereafter born to said Berry Tatum, Jr., from the family of said Berry Tatum, Jr., as the persons upon whom to settle the estate therein devised and bequeathed. The present bill shows these facts, and further shows that the city court decreed such settlement to be made, and, upon proper conveyances and transfers having been executed to said Edmund and Clarke and such other children as might thereafter be born, it was decreed that the resignation of said Heywood as trustee be accepted, and that he be fully discharged as such trustee. The object of the present bill is to have the selection and settlement heretofore made in favor of Edmund and Clarke children of Berry Tatum, and such others as may be born to him, set aside and annulled, and that he be allowed to select Berry Tatum, Jr., himself as the member of his family upon whom to settle said estate. The equity of the bill is made to rest wholly upon the following averments: That "orator would have selected the said Berry Tatum, Jr., as the beneficiary under the trust conferred by said will, but for the fact that your orator was advised by counsel that under said trust powers the said Berry Tatum, Jr., was not one of the persons from among whom he was authorized to make the selection, his counsel in that proceeding stating that the said Berry Tatum, Jr.,...