Wynn v. Fitzwater
| Decision Date | 29 May 1907 |
| Citation | 151 Ala. 171,44 So. 97 |
| Parties | WYNN ET AL. v. FITZWATER ET AL. |
| Court | Alabama Supreme Court |
Appeal from Chancery Court, Tallapoosa County; W. W. Whiteside Chancellor.
Bill of Eva J. Fitzwater and others against W. H. Wynn administrator, and others. Decree for complainants, and defendants appeal. Reversed and remanded.
James W. Strother, for appellants.
Lackey & Bridges, for appellees.
James H. Lowry was the executor of the will of A. J. Lowry. The will of said A. J. Lowry in its sixth item provides: "I do hereby constitute and appoint him (James H. Lowry) executor of this my last will and testament, with full power to sell at public or private sale, and without any order of court, any lands or property that may be necessary to be sold for the payment of any debt I may owe at my death, and in view of this confidence and trust of my beloved son, I expressly will and desire that upon granting letters of executorship, that my said son, shall not be required to execute any bond, the same being hereby waived."
The wife of James H. Lowry, by item 5 of the will, was made alternate executrix, in the event of the death of said James H. Lowry.
Item 7 provides: "That the control and management of said property by my son and his wife, Mary Lowry, shall continue during their lives, first, under the control of James H. Lowry, and if he should die and his wife, Mary, survive him, then his wife, Mary Lowry, and I expressly will and desire, that while the title of the property, real and personal, and the rents, vests in the children of said James H. Lowry, yet the said James H. Lowry, during his life shall have a right to use the rents and profits, without any liability to account for the same, and in the event of his death, his wife, Mary Lowry, shall have like authority, this provision being made in the confidence that my son and his wife will properly clothe and support said children."
On the death of said A. J. Lowry, F. A. Vaughan, as is shown, claimed to be a creditor of his estate, to the amount of $968.29, and he pressed said James H., as executor, to pay the same; and said James H., as executor, on the 25th of August, 1898, executed to said Vaughan what purported to be an absolute deed to the real estate belonging to the said A. J. Lowry, at his death. The bill avers (section 12) that while said instrument appears to be an absolute deed, it was understood and agreed between the said F. A. Vaughan and James H. Lowry, at the time said deed was executed, that the same was to secure the past due indebtedness; that the said Lowry was to be, and did remain, in possession of said lands therein conveyed, up to the present time; and that it was further understood and agreed, at the time of the execution of said paper, that the said James H. Lowry should make payments on the same, from time to time, as he was able, and that he should remain in possession of said property undisturbed until he could pay the amount therein claimed to be due, and it was distinctly understood, that the said deed was to operate only and solely as a security for the amount claimed to be due from the said Lowry as executor of said A. J. Lowry, deceased, and when all of said indebtedness was paid, that the said Vaughan would surrender said deed and convey all his right, title and interest in and to said lands, back to the said James H. Lowry as such executor. It is further charged, that at the time said deed was executed, on a fair settlement there was nothing due from said J. H. Lowry to said F. A. Vaughan; that said land conveyed in said deed was worth the sum of $2,000, at the time of said conveyance, and complainants aver, that they are ready and willing to pay any amount that may be due from the estate of A. J. Lowry, deceased, to the said F. A. Vaughan, at the time of the filing of this bill, or at the time of the rendition of decree thereon, and that since the making of said deed, the said J. H. Lowry has made various and sundry payments thereon, amounting to more than $300.
It was further shown, that said F. A. Vaughan died intestate in July, 1892, in Tallapoosa county, and that W. H. Wynn, the defendant, was duly appointed and is now the administrator of the estate of said deceased, and on the 25th of February, 1905, as such administrator, he commenced his suit in ejectment in the circuit court of said county, against James H. Lowry, for the possession of the lands described in the bill, purporting to have been conveyed to said deceased by said deed, which suit is now pending in said court. Complainants offer to pay to said Wynn, as such administrator, whatever sum may be really, fairly and honestly due from the estate of said A. J. Lowry, deceased, to the estate of said F. A. Vaughan, deceased, and submit themselves to the jurisdiction of the court for all purposes connected with and incident to the foreclosure of said instrument above mentioned.
The prayer is for an injunction against said Wynn, as administrator, pending this suit, from prosecuting his said suit in ejectment against said James H. Lowry for the possession of said lands; and, on a final hearing, for a decree declaring said deed to be a mortgage to secure the indebtedness due by the estate of said A. J. Lowry, deceased, to said F. A. Vaughan and to his administrator, W. H. Wynn, and for a reference to the register to ascertain the amount due on said mortgage, after excluding all matters not properly chargeable against the estate of said A. J. Lowry, and after deducting all payments that have been made thereon, and any indebtedness due from said Vaughan to said A. J. Lowry, as set up in the bill, and that upon the payment of such balance as may be found due the estate of said Vaughan, or to his administrator, Wynn, that said mortgage be declared void and of no effect, and for a divestiture of title out of the estate of said Vaughan, his heirs and administrators, and the investiture of same in complainants, as fully as if said instrument purporting to be a deed had never been made, and for a perpetual injunction against said Wynn and his successors from the prosecution of said ejectment suit. There was, also, a prayer for general relief.
The defendant demurred to the bill on many grounds, and moved to...
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