Whitehead v. Whitehead
| Decision Date | 23 December 1904 |
| Citation | 142 Ala. 163,37 So. 929 |
| Parties | WHITEHEAD v. WHITEHEAD. |
| Court | Alabama Supreme Court |
Appeal from City Court of Bessemer.
Petition by Lucy Whitehead for the appointment of an administrator and trustee of and for the estate of John Whitehead, deceased. From a decree overruling a motion to dismiss the petition and granting the prayer of a cross-petition, petitioner appeals. Affirmed.
It was averred in the petition that under and by virtue of the will of John Whitehead, deceased, Joseph Whitehead, the son of John Whitehead, was nominated executor and named as trustee to carry out trusts created by the provisions of said will. The will is annexed to the petition as an exhibit, and it is shown that certain trusts were imposed upon the said Joseph Whitehead as trustee, who was also named as executor. It was further averred in the petition that Joseph Whitehead had died, and that the trust had not been fully performed. Subsequent to the filing of this petition, petitioner made a motion to dismiss the proceedings upon the grounds that Joseph Whitehead, who was named as trustee and executor in said will, left a last will and testament, and named a testator; and that the title to the property of John Whitehead, deceased, and the trusteeship of said property descended to the testator of the last will and testament of Joseph Whitehead. Subsequently there was filed a cross-petition on the part of some of the children and heirs of John Whitehead, deceased, in which they asked for the appointment of the trustee. Demurrers were interposed to the original petition and to the cross-petition. On the submission of the cause the judge of the city court rendered a decree overruling the motion to dismiss the petition, and granted the prayer of the cross-petition, and named and appointed a trustee as successor in the trust under the will of Joseph Whitehead.
B. F Baxley and W. F. Porter, for appellant.
J. A Estes and W. K. Smith, for appellee.
The appeal in this cause is from a decree appointing a successor to Joseph Whitehead, deceased, who was appointed trustee by the will of his father, imposing upon him active duties to perform, and who before his death accepted the trust and entered upon the discharge of those duties. No provision was made by the will for the appointment of his successor. In other words, no power was conferred upon Joseph Whitehead to name his successor, and under it he was without...
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