Wood v. Amos

• Decision Date: 02 June 1938
• Docket Number: 6 Div. 288.
• Citation: 183 So. 639,236 Ala. 477
• Parties: WOOD ET AL. v. AMOS.
• Court: Alabama Supreme Court

183 So. 639

236 Ala. 477

WOOD ET AL. v. AMOS.

6 Div. 288.

Supreme Court of Alabama

June 2, 1938

Rehearing Denied Oct. 6, 1938.

Appeal from Circuit Court, Jefferson County; J. F. Thompson, Judge.

Suit in equity by Mabel Roy Amos, as trustee under the will of Charles E. Roy, deceased, against T. J. Toolen, Bishop of Mobile, trustee, and others, for the construction of the will and the approval of the account of the trustee, wherein Clement Wood filed a cross-bill. From a decree approving accounts and transactions of the complainant and dismissing the cross-bill, Clement Wood and others appeal.

Affirmed.

Basil A. Wood, of Birmingham, for appellants.

Wm. S Pritchard and David R. Solomon, both of Birmingham, for appellee.

THOMAS Justice.

The cause was submitted on motion and merits, and as suggested on the submission, the affidavit made the subject of the motion will be considered, if the same was shown to have been duly introduced in evidence. Although the appeal had been taken on January 1, 1938, and citation of appeal served on defendant on February 18, 1938, it was within the jurisdiction and power of the trial judge to ascertain and direct the register in preparing the true record for this court, under the evidence on motions. The motions are denied. Home Ins Co. v. Shriner et al., Aetna Ins. Co. v. Shriner et al., 235 Ala. 65, 177 So. 897.

There are phases of this case reported as Amos v. Toolen et al., 232 Ala. 587, 168 So. 687; Alabama Home Building & Loan Ass'n v. Amos, 233 Ala. 367, 172 So 102. On the former appeal (Amos v. Toolen et al., supra) it was observed of the status of Mrs. Amos under the will in question, that (page 691):

"Mrs. Amos is not only a life tenant of the property involved in this proceedings, but is one of the two surviving executors. By the terms of the will of the decedent these executors are given the right to sell any and all the real property of the decedent, not specifically devised, but only, as heretofore pointed out, for the limited purpose of reinvestment.

" 'The executor or administrator is not only the personal representative of decedent, but is also to a very great extent the representative of the creditors, and of the legatees or distributees. He occupies a position of trust with respect to those who are interested in the estate, and is a trustee in the broadest sense, although not in the general acceptation of the term.' 23 Corpus Juris, § 387, pp. 1170, 1171."

It may be here said in a word that Charles E. Roy, through his will leaving all of his properties to his daughter, Mrs. Mabel Roy Amos, at her death one-half to go to her daughter and the balance to named charities, with the exception of a one forty-eighth undivided interest (after allowing for contingent bequests) in remainder to his attorney who drew the will, has named his said daughter Mrs. Mabel Roy Amos (his only child) and other persons as executors and as trustees, with certain rights and liabilities in the management of his property, until the death of his daughter. The word "trustee" is not mentioned in the will, but the duties, rights and liabilities of such trustee were definitely indicated and were decided on the former appeal.

It is recited that all remainder interests were in court during the last trial, heard the testimony of Mrs. Amos and saw and understood the many vouchers offered by her. Such representatives in remainder interests, except only the Wood interest, made statements to the court that they were satisfied with Mrs. Amos' conduct of the business and instituted no contest. Pleadings to like effect were filed by each remainder interest, except only the one forty-eighth interest in remainder represented in the bequest to Mr. Wood.

It is insisted by appellant that the items aggregating $4161.97 spent on a heating plant, new roof and metal work, new concrete floor and plumbing were disbursed by the life tenant as upkeep, and not as permanent improvements done under the powers of the will. The right to these credits depends upon the character of Mrs. Amos' possession and the character of these improvements. If as a life tenant she was required to spend funds for the reasonable "up-keep" of the property, such credits are not allowed. Garrett et al. v. Snowden, 226 Ala. 30, 145 So. 493, 87 A.L.R. 216; Staples v. Pearson, 230 Ala. 62, 159 So. 488, 98 A.L.R. 852; Sumner v. Bingham, 210 Ala. 446, 98 So. 294.

Section 9 of the will required that the estate be kept together "until the death of both my said wife and daughter," under the terms of said will. The wife was dead at the time of the final settlement of the estate in the Probate Court, and the daughter is the real complainant here. The improvements made were in the nature of permanent repairs and for the benefit of the remainders, rather than in the nature of "up-keep."

On the former appeal, this court said that, in making investments of funds of the estate, the representative acts as trustee rather than as executor or administrator, and the "duties and liabilities in respect to such investments are governed by the same rules as apply to other trustees." Amos v. Toolen, supra; Garrett et al. v. Snowden, supra. Mrs. Amos and the Bishop held the property in a representative capacity or as trustees, and as such, it was their duty to conserve and preserve the trust properties, and they were duly credited for expenditures made in that behalf. Moneys were paid by them for trust improvements duly made, assessed against and required to be paid of said trustees and the accumulation of interest thereon before the trust estate came into the hands of such trustees.

Item 3 of the will empowered the personal representatives on their concurrence to sell any and all of the real estate, not specifically devised, and "reinvest the proceeds in other real estate, and hold the same in the place and stead of the real estate so sold." At the time the improvement was made, the trustees had on hand considerable cash, a part of which was used in making the payment on the property in question. The power given the trustees to reinvest the proceeds of sale authorized the construction and improvement of the building in question on the trust land. Such are the general authorities. McDaniel v. Moody, 3 Stew. 314; 35 Corpus Juris, 649; Stevens v. Melcher, 152 N.Y. 551, 46 N.E. 965, 968; In re Heroy's Estate, 102 Misc. 305, 169 N.Y.S. 807. The credits claimed on account of the building aggregated $10,486.67, and were allowed as proper credits.

The acts of the trustee in changing what is designated as "old mercantile building at 2000-02 Avenue E, Ensley," from a mercantile building to an up-to-date theatre building; and of erecting a filling station at the Southwest Corner of Avenue E and 22nd Street, Ensley, known as the Standard Oil Filling Station; the Morris Avenue property; the property on 10th Avenue South; and that on Avenue E and 20th Street, Ensley, known as the "brick building", were approved by the court. We find no error in allowing credit for the improvements in question. The evidence supports the action of the trustee in making these permanent improvements that enure to the remaindermen, rather than designating them as merely "up-keep" by a life tenant.

The Woods' cross bill, as amended, averred the investment of $22,500 of the corpus in shares of stock in the Alabama Home Building and Loan Association and in the Bankers Insurance, Building and Loan Association. After the second appeal, the balance of that principal was refunded on or about March 20, 1937. That pleading sought the removal of Mrs. Amos from possession or to require bond to protect the remaindermen. We agree with the trial court as to this matter and that the evidence does not show that Mrs. Amos acted with the intention and in the manner that caused permanent loss, nor is it shown that she was not a fit person to hold possession and control over the corpus of the estate as an individual or in a representative capacity of said estate. It is shown that she had the advice of her co-trustee and her daughter and had their consent. Thus she had the assent and approval of substantially all of those representing the remainder.

The question is well stated by the trial court, as follows:

"Nor has any good reason been shown why Mrs. Amos should be removed from the custody and control of property left to her by her father in which her daughter owns one-half of the remainder.

"The evidence presents a very different case from that presented by the pleadings.

" 'A Cross bill will not be entertained where the party filing it can obtain full relief in the process of adjudicating the issues tendered by an original bill.' Haralson v. Whitcomb, 200 Ala. 165 (75 So. 913; Emews v. Stephens et al., 233 Ala. 295,

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