Appeal
from Circuit Court, Mobile County; J. Blocker Thornton
Judge.
Bill by
the First National Bank of Mobile (as trustee) against
Madelyn Watters, individually and as executrix of the estate
of Julian A. Watters, Jr., deceased, Julian A. Watters, III
and others, for construction of the will of Julian A
Watters, deceased. From a decree in favor of respondent
Madelyn Watters, respondent Julian A. Watters, III (by
guardian ad litem, Mell A. Frazer), appeals.
Reversed
and remanded, with directions.
Allowance
to guardian ad litem representing minor in proceeding
resulting in construction of will favorable to vesting of
entire estate in minor, including reasonable fee for
associate counsel employed under court order, held
payable out of portion of estate available to minor.
The
will involved is as follows:
"State
of Alabama
"County
of Mobile
"Know
All Men That I, Julian A. Watters, of Mobile, Alabama,
being of sound mind and disposing memory, but conscious of
the uncertainties of life, do make, publish and declare
this to be my last will and testament, hereby expressly
revoking and annulling all and every other will and
testamentary devise that I may heretofore have made, and do
will and provide:
"First.
"I
do hereby nominate and appoint the City Bank and Trust
Company, a corporation, of Mobile, Alabama, as Executor
of this my last will and testament.
"I
do hereby direct my Executor to pay all of my just debts
and funeral expenses out of the first moneys belonging to
my estate that may come into its hands.
"Second.
"I
do give and bequeath the sum of One Thousand ($1000.00)
Dollars to each of my cousins, Mrs. Florence Moody, Mrs.
Mary Reed, and Watters Williams.
"Third.
"I
do give and bequeath to my nephew, Alva B. Chaney the sum
of Five Thousand Dollars ($5000.00).
"Fourth.
"I
do give and bequeath to my sister Mrs. Lucy W. Chaney,
the sum of Ten Thousand Dollars ($10,000.00).
"Fifth.
"I
do give, devise and bequeath to my beloved wife, Ethel H.
Watters, my home on Government Street which I purchased
from Robert C. Morris and wife by deed recorded in the
Probate Court of Mobile County, Deed Book 118, Pages
539-40, and also the vacant lot adjoining the homestead,
which I purchased from R.G. Richard and wife by deed
recorded in the Probate
Court of Mobile County, in Deed Book 119, New Series, pages
164-5, together with all of the furniture and furnishings and
all other personal property that may be upon the said real
estate at the time of my death, not, however, including
bonds, securities and other evidences of debt due to me.
"Sixth.
"I
do give, devise and bequeath to my son Julian A. Watters,
Jr., that certain lot of land, situated on Government
Street, which I purchased from A.H. Gaillard by deed
recorded in the Probate Court of Mobile County, in Deed
Book 139, New Series, pages 325-6.
"Seventh.
"I
do give, devise and bequeath to my faithful servant, Frank
Woods, the following described real estate, situate, lying
and being in the County of Choctaw, Alabama, and more fully
described as follows:
"E.
1/2 of S.E. 1/4 Sec. 32 T. 14 R. 1 West.
"N.W.
1/4 of S.E. 1/4 Sec. 32, T. 14 R. 1 West.
"S.W.
1/4 of S.E. 1/4 Sec. 32 T. 14 R. 1 West.
"Eighth.
"I
do give, devise and bequeath all of the rest and residue of
my estate, real, personal and mixed, of whatsoever kind and
character and wheresoever situate, to the said City Bank &
Trust Company, in trust, for the following purposes: that
is to say, that the said City Bank & Trust Company shall
manage and control my said estate, collect the rents,
incomes and profits thereof as long as this trust shall
continue, having full power and authority to sell and
dispose of any part of the personal property of my estate,
without the necessity of applying for any order of Court,
but for the sole purpose of reinvestment, and it shall
reinvest the proceeds of said sale and all of the rents,
incomes and profits, arising from my estate in some safe
State Bonds, but it shall not have authority to sell or
convey away any of the real estate belonging to said trust,
except under the orders of some court of competent
jurisdiction.
"Out
of the rents, incomes and profits of my estate, the said
Trustee shall, on the first day of each month, during the
life of my aunt, Miss Cammie A. Watters, pay over to her
the sum of Two Hundred Dollars ($200.00) per month, which I
provide for her comfortable support and maintenance.
"The
said Trustee shall also, on the first day of each month,
during the life of my sister, Mrs. Lucy W. Chaney, pay over
to her the sum of Two Hundred Dollars ($200.00) which I
provide for her support and maintenance, and which is in
addition to the bequest of Ten Thousand Dollars
($10,000.00) hereinabove provided for.
"My
said Trustee shall, on the first day of each month, during
the life of my niece, Miss Lucie Chaney, pay over to her
the sum of One Hundred Dollars ($100.00) which I provide
for her support and maintenance.
"All
of the balance of the rents, incomes and profits arising
from my estate, after making the said monthly payments
hereinabove provided for, shall, so long as my wife may
live, be divided between my wife and children, share and
share alike. My wife's share of said income shall be
paid over to her on the first day of each month as long as
she may live. After my wife's death, the said entire
income shall be divided equally amongst my children, and be
in all respects treated as if no provision had ever been
made for my wife. My said Trustee shall, from time to time,
as requested by my wife, pay over to her whatever amounts
she may claim as the cost of supporting, maintaining and
educating my several children who may be under the age of
eighteen (18) years respectively, the amount paid over to
her for the support, maintenance and education of each
child being charged to that child. The said payments on
account of any child shall not, however, during any one
year, exceed that child's share of the rents, incomes
and profits of my estate during that year. The amounts so
paid over to my wife for the support, maintenance and
education of my children are paid over to her for that
purpose, and are to be received by her free of any legal
accountability, either to the child or to any other person,
it being the intent and purpose of this provision to
entrust the support, maintenance and education of my
children, and expenditures for their benefit, entirely to
my wife precisely as if the moneys which she received had
been given to her absolutely, and in this, I am relying
upon her motherly instinct and integrity. Whatever amounts
are paid to my wife under this provision on account
of each child, shall be charged against that child, and my
said Trustee shall reinvest and accumulate the balance of
such child's share of said rents, incomes and profits
of my estate, to be paid over to said child, in the final
distribution to him, as hereinafter provided for. The
foregoing provisions of this item shall continue as to each
child until he or she shall have reached the age of
eighteen years, after arriving at which age, each of my
children shall receive from my said Trustee, from time to
time as they may request the same, such moneys, not
exceeding their share of the income for the year in which
the demand is made, as may in the judgment of said Trustee
be reasonable and proper for the liberal support
maintenance and education of such child, and should the
said Trustee at any time, deem it necessary to withhold
from said child any portion of the said rents, incomes and
profits which the said child may desire to receive on
account of his support, maintenance and education then the
payment of said child shall be increased to whatever amount
my said child and his mother may, from time to time jointly
certify to the said Trustee to be, in their judgment,
reasonable and proper for the purposes of the support,
maintenance and education of the said child, the payments
during any one year, however, never to exceed that
child's portion of the rents, incomes and profits of my
estate for that year. These distributions to my children
shall continue as to each child respectively, until they
reach the age of twenty-one years, and thereafter until
they shall have finished their education.
"Should
my wife marry again, then and in that event she shall
thereupon cease to be entitled to receive and manage any
portion of the share of any of my children in the rents,
incomes and profits of my estate, and in that event, the
said Trustee shall provide for the support, maintenance and
education of my children out of their respective shares of
the rents, incomes and profits of my estate, in keeping
with their station in life, up to the time when they
respectively reach the age of eighteen years without the
intervention of my wife, charging the expenditures as above
provided, but the marriage of my wife shall work no change
in the matter of caring for said child after he or she
arrives at said age of eighteen years. It is my desire that
each of my children shall be afforded every educational
advantage which they are willing to accept.
"After
the death of my wife, all of the share of my property which
is set apart for the purpose of providing an income for her
during her life, I give, devise and bequeath to my several
children, share and share alike. Should she die before the
final distribution to all of my children, said Trustee
shall immediately distribute to each child who may have
already received a final distribution, his or her share
thereof, and the share of each of said
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