Wright v. Fannin

• Citation: 121 So. 528,219 Ala. 234
• Decision Date: 21 March 1929
• Docket Number: 7 Div. 857.
• Parties: WRIGHT ET AL. v. FANNIN ET AL.
• Court: Supreme Court of Alabama

121 So. 528

219 Ala. 234

WRIGHT ET AL. v. FANNIN ET AL.

7 Div. 857.

Supreme Court of Alabama

March 21, 1929

Rehearing Denied April 18, 1929.

Appeal from Circuit Court, St. Clair County; Woodson J. Martin Judge.

Bill to sell lands for partition by Susie Fannin Wright and J. J Fannin, Jr., against Maud Fannin and John Edmondson. From a decree dismissing the bill, complainants appeal. Affirmed.

M. M Smith, of Pell City, for appellants.

Frank B. Embry and W. A. Starnes, both of Pell City, for appellees.

BOULDIN J.

The primary relief sought by the bill is the sale of lands for partition. Complainants assert ownership as surviving children and heirs of J. J. Fannin, deceased.

The case made by pleadings and proof, briefly stated, is this:

J. J. Fannin died in 1908, leaving surviving him a widow, Louvinie Fannin, and the children of a former marriage, Albert, Javis, and Susie, all then of full age.

At the time of his death, J. J. Fannin owned two farms of 100 acres each, one the home where he resided at his death, the other known as the Old Fannin Place or Upper Place. The home place was of the value of probably $2,500, and the other place $1,800 to $2,000. He left a will made shortly before his death, wherein the home place was devised to his widow for life with remainder to his son Albert.

His other property, real and personal, was devised and bequeathed to his widow and three children equally.

Soon after his death, the will was propounded for probate by his son Albert, named therein as executor. The probate of the will is not proven. The record alone is the legal evidence of probate. The petition for probate, an acknowledgment of service thereon by the next of kin, and an order setting day for hearing, constitute the sole record produced. No evidence appears of destruction or loss of later records.

No title, therefore, to the home place, the subject-matter of this suit, passed under the will as such, but descended to the children of decedent, subject to the quarantine, dower, and homestead rights of the widow.

But it appears that pending the probate of the will Javis and Susie expressed dissatisfaction with the division of the estate as made by the will, and thereupon the widow and Albert joined in the execution of a quitclaim deed conveying their interest in the Upper Place to Susie and Javis. The grantees took exclusive possession, and later each sold and conveyed his or her half interest therein.

The recited consideration in the quitclaim deed was $500, but it is admitted in evidence that same was not paid nor intended to be paid in money. It is clear from the whole evidence that the deed was made in a family settlement, and its real consideration was their surrender of any claim as heirs in the home place. Albert purchased and took a deed to the interest of the widow and continued to reside upon and claim the property as his own until his death in 1926. He also purchased the interests of his brother and sister in the personal estate, each, for $175. In 1914 he sold and conveyed four acres off the home tract to Mr. Hyde, who went into possession and erected improvements thereon of the value of $3,500.

This property passed by mesne conveyances to John Edmondson, made party respondent to the bill. No question was ever raised as to the title to this property or that still held by Albert until after his death in 1926, some 18 years after the death of his father, and 4 years after the death of the widow.

No explanation of the delay after the termination of...