Warrick v. Woodham

• Decision Date: 03 December 1942
• Docket Number: 4 Div. 247.
• Parties: WARRICK et al. v. WOODHAM et al.
• Court: Alabama Supreme Court

11 So.2d 150

243 Ala. 585

WARRICK et al. v. WOODHAM et al.

4 Div. 247.

Supreme Court of Alabama

December 3, 1942

Rehearing Denied Jan. 14, 1943. [Copyrighted Material Omitted]

Martin & Jackson, of Dothan, for appellants.

Tompkins & Ramsey, of Dothan, for appellees.

LAWSON Justice.

The bill in this cause was filed by the appellants, Virginia Warrick, a minor, through her general guardian, J.L. Mullins and Mary Sue Warrick, against Mrs. Lillie Mae Woodham, B.L Warrick, Dolphie Pittman Powell, Margaret Pittman Buckner, Charles Pittman and Brady M. Woodham, as executor of the last will and testament of L.S. Warrick, deceased. The respondent Lillie Mae Woodham died subsequent to the date on which the testimony was taken before the register but prior to the date of submission. Betty Jean Woodham, Sylvia Warrick, Haywood Warrick, Susan Warrick, all minors, and Brady M. Woodham, as an individual and as executor of the last will and testament of Lillie Mae Woodham, deceased, were substituted as parties respondent for and in the place of Lillie Mae Woodham, deceased. J.R. Ramsey was duly appointed as guardian ad litem for the minors and agreed for them to be made parties respondent.

The complainants and all of the respondents, with the exception of Brady M. Woodham, are either children or grandchildren of L.S. Warrick, who died in April, 1938, seized of 185 acres of land located in Houston County, which land is the subject of this suit. Complainant Mary Sue Warrick and respondents B.L. Warrick and Lillie Mae Woodham are the children of L.S. Warrick, and complainant Virginia Warrick and all of the other respondents, with the exception of Brady M. Woodham, are the grandchildren of the said L.S. Warrick. The respondent Brady M. Woodham was the husband of Lillie Mae Woodham and, as stated above, is the executor of Warrick's will.

L.S. Warrick executed his will on the 24th day of December, 1924. That part of the will which is pertinent to this cause is as follows:

"Article Five. It is my will and I hereby direct that my Executor, hereinafter named, shall sell my plantation in Houston County, Alabama, containing one hundred and eighty-five (185) acres, that lies just outside of the North-west corporate limits of the City of Dothan, Alabama, as soon after my death as practical, provided he can obtain for the same the sum of Eighteen Thousand ($18000.00) Dollars; but if he cannot obtain the sum of Eighteen Thousand ($18000.00) Dollars for said plantation then I hereby direct that he hold and lease out said plantation for a period of two years and collect the rents therefrom and said rents shall be paid as follows: After paying taxes on said place to be divided as follows: One-sixth each to my children, Young Warrick, Harry Warrick, Bascomb Warrick, Lillie Mae Woodham and Mary Sue Warrick, and one-eighteenth part thereof to be paid to each of my grandchildren, Charles Pittman, Margaret Pittman and Dolphie Pittman. Should my executor be unable to sell said property for Eighteen Thousand ($18000.00) Dollars or more within two years from the date of my death then he shall sell said plantation for the best price he can obtain and execute titles as my Executor to the purchaser of said lands; and when said lands are sold the proceeds thereof shall be divided as follows: One-sixth of the same shall be paid to each of my children, Young Warrick, Harry Warrick, Bascomb Warrick, Lillie Mae Woodham and Mary Sue Warrick, and one-eighteenth to be paid to each of my grandchildren, Charles Pittman, Margaret Pittman and Dolphie Pittman and when said money is paid to my children and grandchildren as herein provided, I hereby direct that they shall invest said money in a home, except my minor daughter Mary Sue Warrick and I hereby direct that her money arising from the sale of said lands be loaned to some solvent bank and draw interest until she becomes twenty-one years old."

The original bill, filed December 5, 1940, sought: (1) the removal of the administration of the estate of L.S. Warrick, deceased, from the Probate Court of Houston County to the Circuit Court in Equity of that county; (2) an order by the court decreeing that complainants Mary Sue Warrick and Virginia Warrick, and respondents Lillie Mae Woodham, B.L. Warrick, Dolphie Pittman Powell, Margaret Pittman Buckner and Charles Pittman are the joint owners as tenants in common of the land described in the bill, which is the same land dealt with in Article Five of L.S. Warrick's will, and a further order that said lands be sold for division; (3) and in the alternative, a construction of the will by the court, declaring the respective rights of the complainants and respondents under the will and an order defining the rights, powers, duties and responsibilities of Brady M. Woodham, as executor of the will; (4) that the court supervise and direct the executor as to the sale of the property in the event it should determine that he has the power of sale under the will; (5) that the court order that a reference be held to determine the amount of the fee to be paid attorneys for complainants out of the proceeds of the sale of the lands or out of the estate for legal services rendered. Under amendments to the original bill, the complainants sought to have the court: (1) cancel a deed which it was alleged was fraudulently executed by the executor, Brady M. Woodham, to his wife, Lillie Mae Woodham; (2) and to order that the lands be sold at public outcry to the highest bidder for cash, under the supervision of the court, or to order said lands sold to complainants at a price which it was alleged they would pay therefor.

The trial court immediately ordered the removal of the administration of the estate of L.S. Warrick, deceased, from the Probate Court of Houston County to the Circuit Court in Equity of that county. Section 138, Title 13, Code of Alabama, 1940.

Appellees' demurrer to that aspect of the original bill which had for its purpose the sale of the lands for division among the alleged joint owners was sustained, as was the demurrer to that aspect which sought to have the court supervise and direct the executor in the exercise of the power of sale conferred upon him by the will. The trial court, however, overruled appellees' demurrer to that aspect of the original bill which sought a construction of the will and did likewise as to the demurrer to the amendment to the bill which sought a cancellation of the deed which it was alleged was fraudulently executed by the executor to his wife.

In its final decree the court found that appellants were not entitled to have the deed of B.M. Woodham, as executor of the will of L.S. Warrick, to Lillie Mae Woodham cancelled and set aside. This conclusion resulted in a denial of the alternative prayer that the lands be sold at public auction or to the appellants for the price which they offered to pay therefor. The court found, however, that appellants were entitled to a construction of the will and proceeded to instruct the executor as to the distribution to be made of the purchase price received by him as such executor from the sale of the lands. Appellants were taxed with two-thirds of the costs and B.M. Woodham, as executor, was authorized and directed to pay one-third of the costs out of the proceeds received from the sale of the land before a distribution of the same. It was further decreed that attorneys for appellants were entitled to be paid a reasonable fee out of the funds received from the sale of the lands and the register was directed to hold a reference to determine what would be a reasonable fee to be paid such attorneys for their services rendered.

Appellants assign as error the action of the trial court in: (1) sustaining the demurrer to that aspect of the original bill which sought a sale of the land for division; (2) sustaining the demurrer to that aspect which sought to have the court supervise and direct the executor in the exercise of the power of sale conferred upon him by the will; (3) refusing to cancel the deed of B.M. Woodham, as executor, to Lillie Mae Woodham; (4) failing to order that the lands be sold at public auction or to the appellants for the price which they offered therefor.

Appellees have cross-assigned errors as to the action of the court in: (1) overruling their demurrer to that aspect of the bill which sought a construction of the will; (2) overruling demurrer to that aspect which sought a cancellation of the deed executed by the executor to Lillie Mae Woodham; (3) decreeing that attorneys for appellant were entitled to a reasonable attorney's fee for their services rendered in securing an order of the court with reference to the distribution of the funds in the hands of the executor arising from the sale of the lands to be paid out of such funds; (4) taxing one-third of the costs incurred in the suit against the executor and ordering such costs to be paid out of such funds.

We will consider, first, the assignments of error made by the appellants and argued.

Appellants' assignments of error 1, 2, 4, 9, 10 and 14 all relate to the action of the trial court in sustaining appellees' demurrer to that aspect of the bill which sought a sale of the lands for division. They are treated together in appellants' brief and will be so dealt with here.

The averments of the bill relating to that aspect are substantially as follows: That L.S. Warrick died testate in Houston County, Alabama, seized and possessed of lands therein described. That he left a last will and testament which had been admitted to probate by the Probate Court of Houston County, a copy of which will was made a part of the bill. That at the time of the death of the said L.S. Warrick he left surviving him three children, namely, Mary Sue...