Weil v. Converse

• Decision Date: 05 April 1962
• Docket Number: 2 Div. 417
• Citation: 273 Ala. 495,142 So.2d 245
• Parties: A. Sigmund WEIL v. Laura J. CONVERSE et al.
• Court: Alabama Supreme Court

Page 245

142 So.2d 245

273 Ala. 495

A. Sigmund WEIL v. Laura J. CONVERSE et al.

2 Div. 417.

Supreme Court of Alabama.

April 5, 1962.

Rehearing Denied June 21, 1962.

Harry W. Gamble, Selma, for appellant.

John Randolph Smith, Selma, for appellees.

COLEMAN, Justice.

This is an appeal from a decree overruling demurrer to a bill in equity seeking to sell real estate for division of the proceeds among the persons alleged to own it as tenants in common.

It is alleged that the land was owned by O. M. Cawthon, deceased, who died testate November 4, 1935, and was survived by a widow, and one daughter named Lucy. The widow is still living. The daughter died November 20, 1958, and left no child or children surviving her.

O. M. Cawthon was survived also by three sisters, and the child of a deceased brother. It appears that the three sisters died prior to the death of testator's daughter. It further appears that the sisters left children and that all the nieces and nephews of the testator are parties to the bill of complaint.

Two nieces are complainants. The other nieces and nephews are respondents. Certain other persons who claim under a deed executed by one of testator's sisters after his death are also respondents. The widow of testator is also a respondent. The appellant, who is a respondent, is alleged to be the devisee of testator's daughter, Lucy. From the decree overruling his demurrer to the bill, appellant brings this appeal.

Appellant argues that his demurrer should have been sustained because the averments of the bill fail to show that complainants have an interest in the lands which they seek to have sold.

This court has said that a bill in equity to sell lands for division among tenants in common should disclose that the parties to the bill, complainant and respondent, are the sole owners of the lands, the interest of each of the parties therein, that the same cannot be equitably divided without a sale for that purpose, and should describe the lands sought to be sold with that certainty required in judicial sales of realty. In alleging such ownership, it is not necessary to set out the source of title relied on by the tenants in common, nor describe the manner in which they or their ancestor acquired it. If, however, complainant does undertake to show the source of the parties' title or equitable interest, he must allege facts which clearly show good title or a perfect equity. If he fails to do so, the bill is insufficient and subject to demurrer even though a sufficient general averment of interest is contained in another paragraph of the bill. Bowden v. Teague, 266 Ala. 30, 93 So.2d 408.

In the instant bill, complainants have undertaken to show the source of the title of the parties. Under the rule above set out, the complainants must allege facts which clearly show good title or a perfect equity. If the facts alleged show title in complainants, the court did not err in overruling the grounds of demurrer now insisted on by appellant. On the other hand, if the facts alleged do not show title in complainants, the demurrer ought to have been sustained.

If complainants have any title to the lands sought to be sold, complainants acquired that title under and by virtue of the will of O. M. Cawthon, deceased, a copy of which is an exhibit to the bill.

The will is dated February 18, 1935. Testator died November 4, 1935. The will was probated November 12, 1935. Testator's daughter, Lucy, died November 20, 1958. The bill of complaint was filed December 18, 1958.

The will contains fourteen items. Item One directs payment of debts. Items Two to Seven, both inclusive, and Items Ten and Eleven are specific bequests of personalty. Item Fourteen appoints executors. Items Eight, Nine, Twelve, and Thirteen with which this appeal is concerned recite as follows:

'ITEM EIGHT:

'I give and bequeath to my beloved wife, Benie Cothran Cawthon, for and during her natural life, Lots One (1), Two (2), Three (3), Four (4) and Six (6) in Block 24 in Perdido Beach, in location and dimensions as shown by plat of said Perdido Beach recorded in the Probate Office of Baldwin County, Alabama, in Map Book 3-N.S., on pages 300 and 301. It is my intention to give to my beloved wife, for her life, all of my real estate in Baldwin County, Alabama, whether the same is correctly described or not. I place the value of this property at Two Thousand Dollars ($2,000.00), and in the division of the property as hereinafter provided for in this will, the value of this property, as above specified by me, is to be deducted from the twenty-five percent (25%) of my estate that I give to my beloved wife, Benie Cothran Cawthon, for her life. It is my will and desire that my daughter, Lucy Cawthon Calhoun, shall personally have the privilege of using this cabin for a period of thirty (30) days each year, at the rental of Ten Dollars ($10.00) per month, at such time and on such occasion, as will not inconvenience my wife, Benie Cothran Cawthon. The remainder interest in said property, I give and bequeath to my beloved daughter, Lucy Cawthon Calhoun.'

'ITEM NINE:

'I give and bequeath to my beloved wife, Benie Cothran Cawthon, for her life, the following described real estate located in the City of Selma, Dallas County, Alabama, to-wit: Lot number Seventeen (17) of Block number One (1) of the West End Land Company Addition to Selma as shown on page 78 of a Map of Selma made by Mrs. D. C. Russell. [Further description omitted.] I value this property at Four Thousand Dollars ($4,000.00), and in the division of the property as hereinafter provided in this will, the value of this property, as specified by me, is to be deducted from the twenty-five per cent of my estate that I given to my beloved wife, Benie Cothran Cawthon. The remainder interest in said property, I give and bequeath to my daughter, Lucy Cawthon Calhoun.' [Brackets Added.]

'ITEM TWELVE:

'All property owned by me at the time of my death which is disposed of under the terms of this will, except property devised in Items Three, Four, Five, Six, Seven and Eleven of this will, shall be listed by my Executors hereinafter named, and opposite each item shall be placed the value of each piece of property, and such Executors shall divide the property, according to such valuation, between my daughter, Lucy Cawthon Calhoun, and my wife, Benie Cothran Cawthon, in the following proportions: Lucy Cawthon Calhoun, my daughter, shall receive seventy-five per cent of such property, according to such valuation, but such seventy-five per cent shall not include the property given her under Items Three, Eight and Nine of this will. My wife, Benie Cothran Cawthon, shall receive twenty-five per cent of such property, according to such valuation, but such twenty-five per cent shall not include the property given her under Items Eight and Nine of this will. The Executors hereinafter named, however, shall give to the legatees named in this will, the property that I especially devised to such legatees under such will. The Executors named herein, shall execute and deliver to Benie Cothran Cawthon and Lucy Cawthon Calhoun, a deed conveying to each of them, the real estate that they are to receive under my will, but the said deeds shall devise the property to them for the time provided for in this will.'

'ITEM THIRTEEN:

'My beloved wife, Benie Cothran Cawthon, shall have only a life estate in the real estate that comes to her under the terms of this will, and the remainder interest in such real estate shall vest in my daughter, Lucy Cawthon Calhoun, if she be living, and if she be dead, in any child or children that may be surviving her. In case my daughter, Lucy Cawthon Calhoun, predecease my wife, Benie Cothran Cawthon, leaving surviving her no child or children, then on the death of my wife, Benie Cothran Cawthon, the remainder interest in such real estate given to her under this will, shall vest in my next of kin just as if I had died intestate. My daughter, Lucy Cawthon Calhoun, shall receive a life estate only in any real estate devised to her under the terms of this will, except the remainder interest given to her in certain real estate under Items Eight and Nine of this will, and at her death, the remainder interest in such real estate given her under this will, except that devised to her in Items Eight and Nine of this will, shall vest in fee simple in any child or children surviving her. In case my daughter, Lucy Cawthon Calhoun, shall die leaving surviving her no child or children, then the remainder interest in such real estate given to my daughter under this will, except that devised to her under Items Eight and Nine of this will, shall vest in my next of kin just as if I had died intestate.'

The real estate here involved is not that disposed of by Items Eight or Nine, but is part of the residuary estate devised by Items Twelve and Thirteen. There is no dispute as to the life estates which were devised to widow and daughter. The dispute is as to the right to the remainder interests which were created by Item Thirteen.

The bill of complaint alleges that Benie Cothran Cawthon, the widow of testator, conveyed her life estate in 25% to the daughter, Lucy, by deed dated May 15, 1946, and that said estate for the life of the widow in 25% was devised by the will of the daughter, Lucy, to appellant. We think it is a fair inference from the averments of the bill, although not stated clearly, that the interest, if any, which the daughter took in the remainder or reversion, by the will of her father, has been transferred to appellant. On that inference, the contest here is between the devisee of the daughter, the appellant, on one hand, and the descendants of the brother and sisters of the testator, the appellees, who are the complainants in the bill, on the other hand.

Appellant contends that under the will, the daughter took not only a life estate in 75%, but also a remainder interest in 100% of the...