Webb v. Webb

• Citation: 33 So.2d 909,250 Ala. 194
• Decision Date: 22 January 1948
• Docket Number: 5 Div. 418-A.,5 Div. 418
• Parties: WEBB et al. v. WEBB. WEBB v. SAME.
• Court: Supreme Court of Alabama

33 So.2d 909

250 Ala. 194

WEBB et al. v. WEBB.

WEBB v. SAME.

5 Div. 418, 5 Div. 418-A.

Supreme Court of Alabama

January 22, 1948

Rehearing Denied Feb. 19, 1948. [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]

Jacob A. Walker, E. H. Glenn, and R. C. Smith, all of Opelika, and W. Howell Morrow, of Lanett, for appellants.

Denson & Denson and L. J. Tyner, all of Opelika, and Martin, Turner & McWhorter, J. C. Blakey, and Alvin W. Vogtle, all of Birmingham, for appellees.

LAWSON Justice.

Mr. L. T. Wimberly, a bachelor, approximately eighty-five years of age, a resident of Loachapoka, Lee County, Alabama, died May 18, 1943. He left a large estate, which he disposed of by will dated April 1, 1941.

There were a few specific bequests, but the bulk of his estate, the residue thereof, was left under the terms of the will to eight nieces and nephews, each of whom was to receive an undivided one-eighth interest in the residue of the estate.

Dr. W. W. Webb, a veterinarian, one of the nephews, was named in the will as executor and provision was made in the will that if Dr. Webb died, declined to act, or was disqualified for any reason, he should be succeeded by his brother, Grady Webb.

Letters testamentary were issued to Dr. W. W. Webb on June 14, 1943, and he served as executor of the Wimberly will and estate until May 26, 1944, on which date he was accidentally killed. Dr. Webb died without making final settlement. In accordance with the terms of the will, his brother, Grady Webb, was named succeeding executor of the Wimberly will on May 29, 1944.

On or about June 28, 1943, Mrs. Eloise B. Webb, the widow of Dr. W. W. Webb, deceased, became the administratrix of his estate.

After Dr. W. W. Webb died and Grady Webb was named executor of the Wimberly will and Mrs. Eloise B. Webb was named administratrix of Dr. W. W. Webb's estate, the administrations of the estates were transferred from the probate court of Lee County to the circuit court, in equity, of that county.

We will sometimes hereinafter refer to the administration of the Wimberly estate in the equity court as the Wimberly estate matter and to the administration of the Webb estate as the Webb estate matter.

On February 1, 1945, Mrs. Eloise B. Webb, as administratrix of the estate of Dr. W. W. Webb, deceased, filed in the Wimberly estate matter her petition and report for final settlement of the administration of the Wimberly estate by her intestate, Dr. W. W. Webb, from the time letters testamentary were issued to him until his death, by charging herself as administratrix of his estate with assets of Mr. Wimberly which had come into Dr. Webb's possession in his capacity as executor and crediting herself as administratrix with credits to which she claimed to be entitled, including disbursements as itemized.

Thereafter on May 22, 1945, Grady Webb, individually and as succeeding executor of the Wimberly will, and two of the other beneficiaries under the Wimberly will, filed in the Wimberly estate matter a contest of the report for final settlement theretofore filed by Mrs. Eloise B. Webb on February 1, 1945, as administratrix of the estate of W. W. Webb. Grady Webb had purchased the interests of four of the beneficiaries named in the will and therefore owned five-eighths of the estate. The contestants not only contested a number of the items of disbursement listed in the report for final settlement and for which credit was sought, but as a part of the contest they incorporated a motion to charge Mrs. Eloise B. Webb, as administratrix of the Webb estate, with a number of items in addition to those charged against the Webb estate in Mrs. Webb's petition and report for final settlement. § 308, Title 61, Code 1940.

A claim was filed in the Webb estate matter against the Webb estate by Grady Webb, the suceeding executor of the Wimberly estate, on behalf of that estate. As amended, this claim contained practically the same items as were included in the contest and motion to charge filed in the Wimberly estate matter. Most of the items set out in the claim, as in the motion to charge, related to assets which had belonged to L. T. Wimberly and which had come into the hands of Dr. W. W. Webb during the time he served as executor of the Wimberly will and for which he had not made account.

In some items the Webb estate was sought to be charged with rent for property of the Wimberly estate alleged to have been used by Dr. Webb for his personal use. At least one item was predicated on a transaction between Dr. Webb and Mr. Wimberly which occurred prior to the latter's death. Mrs. Eloise B. Webb, as administratrix of the Webb estate, gave notice in writing that such claim was disputed in part and specified the part disputed. § 216, Title 61, Code 1940, as amended.

So it appears that the administrations of these two estates were pending in the circuit court of Lee County, in equity, at the same time.

In the Wimberly estate matter there was before the equity court for determination the issues presented by the amended petition and report for final settlement of the administration of the Wimberly estate by Dr. W. W. Webb, filed by Dr. Webb's administratrix, Mrs. Eloise B. Webb, and the contest and motion to charge interposed thereto.

In the Webb estate matter there was before the equity court for determination the issues presented by the amended claim filed against the Webb estate on behalf of the Wimberly estate by Grady Webb, as succeeding executor, and the contest of such claim as interposed by Mrs. Eloise B. Webb, as administratrix of the W. W. Webb estate.

The issues in the two proceedings were the same in most material respects. Consequently, the parties agreed that these two causes should be tried and submitted jointly and that only one decree should be rendered, which was to be applicable to both causes.

In accordance with such agreement, the two causes were tried together. Testimony of all witnesses was taken orally before the court.

Also in keeping with the agreement of the parties, only one final decree was rendered.

Of the numerous items of account still at issue at the time of final decree, the trial court sustain the position of Grady Webb, as succeeding executor of the Wimberly will and estate, with reference to many of such items and sustained the position of the administratrix of the W. W. Webb estate as to other items. The court rendered judgment in favor of the Wimberly estate in the amount of $25,243.76, but allowed the administratrix of the W. W. Webb estate to credit upon such judgment the amount fixed by the court as fees for the executor ($2,500), attorneys ($5,000), and guardian ad litem ($250).

In view of the credits allowed, the amount which was due the Wimberly estate by the Webb estate under the trial court's decree was $17,493.76. This amount was paid by Mrs. Eloise B. Webb, as administratrix of the Webb estate, to the Wimberly estate, with the understanding that such payment would not prejudice the right of either party to appeal, and it was stipulated that in the event of an appeal the records in both causes might be combined into one transcript and that the decree rendered by this court on appeal should dispose of the issues which were before the trial court, as set out in the final decree.

Appeal to this court has been taken in each of the causes. In the Wimberly estate matter the appeal is taken by Grady Webb, individually and as executor of the will and estate of L. T. Wimberly, deceased, and by Hannah W. Peddy and Amma W. Carlyle. Hannah W. Peddy and Amma W. Carlyle are two of the beneficiaries under the Wimberly will. In the Webb estate matter the appeal is taken by Grady Webb, as executor of the will and estate of L. T. Wimberly, deceased.

Both appeals are incorporated in one transcript and have been consolidated here.

Item 6 of the claim filed in the Webb estate matter against that estate by the succeeding executor of the Wimberly estate was as follows: 'Amount due on transaction involving sale of timber of L. T. Wimberly to Auburn Ice & Coal Company, paid to W. W. Webb but not accounted for to estate of L. T. Wimberly, dated on or about May, 7, 1943, $22,500.' The same transaction is made the basis of Item 6 in the motion to charge filed in the Wimberly estate matter.

The trial court disallowed such claim against the Webb estate in both cases. The first assignment of error in each of the appeals relates to this action of the trial court.

This transaction took place prior to the death of L. T. Wimberly, which occurred on May 18, 1943. The main theory upon which appellants seek to fasten liability on the Webb estate is as follows: That W. W. Webb was the agent of L. T. Wimberly and as such agent agreed to sell certain timber belonging to Wimberly to the Auburn Ice & Coal Company for the sum of $25,000; that a 'binder' of $2,500 was paid by the Auburn Ice & Coal Company, which was credited to Wimberly's account in a bank in Auburn; that, thereafter, W. W. Webb, by the exercise of undue influence over L. T. Wimberly, secured a deed from Wimberly to the timber, which deed recited the payment by W. W. Webb of the sum of $15,000 as consideration, but it is claimed no consideration was ever paid; that W. W. Webb then conveyed the timber to the Auburn Ice & Coal Company for a recited consideration of $25,000 but was only paid $22,500 inasmuch as $2,500 had been paid previously as a binder; that the said sum of $22,500 was not paid to Wimberly during his lifetime nor was it accounted for to his estate, but was kept by W. W. Webb and deposited by him in his personal bank accounts.

Appellants do not question the right of the Auburn Ice & Coal Company to the timber. They...