Ussery v. Darrow, 8 Div. 964.

Decision Date20 April 1939
Docket Number8 Div. 964.
Citation238 Ala. 67,188 So. 885
PartiesUSSERY et al. v. DARROW et al.
CourtAlabama Supreme Court

Rehearing Denied May 25, 1939.

Appeal from Circuit Court, Lauderdale County; Chas. P. Almon, Judge.

Bill in equity by Saunders S. Ussery and others against George M Darrow and others, to adjudge right and title of complainants in real property and to sell for division. From a decree sustaining a demurrer to the bill, complainants appeal.


L.E Farley, Irvin A. Clement, and Wm. W. Mitchell, Jr., all of Memphis, Tenn., and Paine & Paine, of Aberdeen, Miss., for appellants.

Cabaniss & Johnston and Wm. H. Trueman, all of Birmingham, and Bradshaw & Barnett, W.H. Mitchell, and Merwin T. Koonce, all of Florence, for appellees.

FOSTER Justice.

Appellants filed a bill in equity for the sale of land for division, and in it set out the claim of those now in possession, and sought an adjudication of their rights.

All parties are asserted to derive title from Jacob K. Swoope who died in 1871, leaving a will which was duly probated in Lauderdale County, Alabama, where he resided, and where the property here involved is situated. The will provided in so far as his real property was concerned as follows:

"I give to my wife, Elizabeth T. Swoope, one third of all the balance of my property, both real and personal, wherever situated for the term of her natural life.
"I give to my daughter, Tempe P. Swoope, all the balance of my property, both real and personal, upon the following conditions and limitations, viz., that should the said Tempe die without issue of her body, the said property is hereby given to my brothers and sisters, or their descendants, the descendants of each brother or sister to take that share which the brother or sister would have taken had he or she been living. Upon the death of my wife I give and devise to my daughter, Tempe, the portion of property herein given and devised to my wife, for the natural life of my wife, and upon the same limitations."

The widow died in 1890. The daughter, Tempe, married George M. Darrow, about 1885, and died October 16, 1927, without ever having had any issue of her body. Testator was survived by one brother, C.C. Swoope, one sister, Fannie Swoope Moore, and by two half-brothers, J.S. Billups and Matthew Clay. He had another half-brother, Thomas F. Clay, who died before testator. But all of them died before the death of Tempe, in 1927. Their descendants living at that time claim under the terms of the will copied above. Thomas F. Clay, who died prior to the death of testator, left three children, all of whom died before Tempe leaving children.

The bill was filed October 7, 1937, which was nine days before the expiration of ten years after the death of Tempe, and sixty-six years after the death of the said testator. It sets out in full a proceeding begun May 25, 1887, in the chancery court of Lauderdale County by Tempe Darrow and her husband George Darrow referring to the will of testator, and making parties the said C.C. Swoope, J.S. Billups and Matthew Clay, and the children of Thomas Clay and Fannie Moore, one of whom, Jacob K.S. Moore, was a minor. It is now alleged that these were not all the descendants of deceased brothers and sisters of testator.

The bill as amended sought the sale of a portion of the lands of testator to obtain funds to be reinvested in making valuable permanent improvements on the remainder. It set up facts showing that it would be to the interest of all persons to do so.

All the adult parties appeared and admitted the allegations of the bill and a guardian ad litem was appointed for the minor, and he answered demanding strict proof, etc. On final hearing the court entered a decree that it would be to the best interest of the minor and all the parties to sell a certain described portion to improve the balance.

This sale was duly made and confirmed, and resulted in acquiring a certain amount of money which the court finally found had become owing by George Darrow on account of the purchase, and that he had expended more than that amount in improving the balance of the property of testator, which was held to be a full compliance with the former decree providing for such improvement, and did provide permanent valuable improvements of interest to all the parties.

It is the property thus sold which has by various processes come into the possession and claim of ownership by the parties to this suit, adverse to the claims of those descendants of the brothers and sisters of testator living at the time of the death of Tempe, who claim it under the terms of the will to which we have referred.

Reference is made by us to the case of Darrow v. City of Florence, 206 Ala. 675, 91 So. 606. This case is not the subject of claim so far as the complaint here is concerned. But in that case, decided here in 1921, it appears that the city undertook to foreclose an improvement lien on lots 111 and 112, which are apparently the same lots which were improved by virtue of the litigation begun in 1887, supra. In that suit Mrs. Tempe Darrow filed a cross-bill making respondents "the other heirs" as stated in the report of the case. This we assume means the living brothers and sisters of testator, if any, or their descendants.

The chief point of the litigation relates to the proper interpretation of that feature of the will which we have copied above. By a divided court it was held that the words of survivorship related to the date of testator's death, and that since at that time the said daughter Tempe had not died without issue, nor at all, therefore, she took a fee simple in the property. The opinion recognized the rule that the words of survivorship do not necessarily relate to the date of the death of testator, but they will do so unless an intent to the contrary is manifest. The majority held that a contrary intent was not manifest from the will itself, and no collateral facts were alleged to shed light on such intent. That suit was determined about sixteen years before the present suit was begun, and about six years before Tempe died. It did not relate to the property here involved, but to the same feature of the will by which it is controlled.

The present bill undertakes to set up such collateral facts as it is contended are sufficient to show that testator intended that the words of survivorship should relate to the date of the death of Tempe. They are in substance that when the will was executed he was a guest in a hotel in Memphis, Tennessee, away from his home: that he was ill of a deadly disease of which he died the following day: that he was then thirty-seven or thirty-eight years of age, and his daughter Tempe was about nine years old; and that he executed the will under apprehension of imminent and impending death.

Our attention is also directed to some litigation in Mississippi, involving property of testator there situated, as reported in Darrow v. Moore, 163 Miss. 705, 142 So. 447. The report of that case, decided in 1932, shows that the court refused to be bound by the interpretation given by this Court in Darrow v. Florence, supra, and by reason of such collateral facts, supra, held in effect that the intention of testator was clear that the words of survivorship related to the death of Tempe, and not to his own death. We are asked in this suit to make a like ruling notwithstanding our opinion to the contrary expressed in Darrow v. Florence, supra, made without the aid of said collateral facts.

The present claimants of the property succeeded in getting a ruling on demurrer to the bill now before us, holding in substance that the present contention of those who are claiming as descendants of the brothers and sisters of testator living at the death of Tempe are barred by laches, and that our interpretation of the will in Darrow v. Florence, supra, though in respect to different property, is now stare decisis, and has become a rule of property.

In answer to the contention of laches, appellants insist that this suit was begun within ten years after their rights came into being, that until Tempe died, assuming that their interpretation of the will is sound, they had no legal standing as executory devisees, for until then it could not be said for a certainty that she would die without issue of her body. They contend, therefore, that the only limitation which controls them is the ten year statute of limitations applicable in equity as at law under sections 8955, 6522, Code.

The question is available by demurrer when the bill shows that the claim is barred by limitations, laches or staleness of demand. Drummond v. Drummond, 232 Ala. 401, 168 So. 428. If the claim is that of laches short of the period of statutory limitations, it may be available, but the special circumstances operating to destroy the right, though not barred by statute, should appear in the bill, and if not they should be brought forward by way of defense. Phoenix Chair Co. v. Daniel, 228 Ala. 579, 155 So. 363; Mullen v. First National Bank, 226 Ala. 305, 146 So. 802; Gayle v. Pennington, 185 Ala. 53(9), 64 So. 572.

Here all the circumstances which affect the question are alleged in the bill in connection with the report of the case of Darrow v. Florence, supra, as it appears in the records of this Court.

The principle of laches is as follows: "Where, from delay any conclusion the court may arrive at must at best be conjectural, and the original transactions have become so obscured by lapse of time, loss of evidence, and death of parties as to render it difficult if not impossible to do justice, the complainant will by his laches be precluded from relief; and it is not even necessary that the court should be satisfied that the original claim was...

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