Young v. Wall

• Decision Date: 28 October 1926
• Docket Number: 3 Div. 745
• Citation: 110 So. 135,215 Ala. 131
• Parties: YOUNG v. WALL.
• Court: Alabama Supreme Court

110 So. 135

215 Ala. 131

YOUNG v. WALL.

3 Div. 745

Supreme Court of Alabama

October 28, 1926

Appeal from Circuit Court, Butler County; A.E. Gamble, Judge.

Bill in equity by Mary Emma Wall against William J. Young. From a decree overruling a demurrer to the bill, respondent appeals. Affirmed.

Smiths Young & Johnston, of Mobile, for appellant.

Powell & Hamilton, of Greenville, for appellee.

SAYRE J.

Appellee's bill is exhibited against appellant as executor of the last will and testament of John Edward Wall, deceased, and individually. It seeks to correct the settlement of the estate of decedent had in the probate court. The averment is that an error of law and fact occurred in the settlement, in that certain legacies to appellee were therein treated by appellant and by the court as general legacies and charged with a proportionate share of debts and expenses, whereas they were in law and fact special legacies due, in the circumstances, to be paid to appellee in full. This appeal is taken from a decree of the circuit court, sitting in equity whereby appellant's demurrer to the bill was overruled.

The bill is filed under authority of the Code of 1923, § 6482. Its contention is that the proceeds of the sale of cotton owned by testator at the time of his death and money standing to his credit in the bank of Greenville--one-third thereof in both cases--were specific legacies to appellee and not chargeable, in the circumstances, with the payment of the debts of the estate or any part of the expenses of administration. It is not denied that the bill shows error but it is insisted that the bill, construed against appellee complainant, as on demurrer it must be, shows that appellee was present at the settlement, was informed by appellant's statement of account of the items of charge now in question, could then have availed herself of the errors now insisted upon, but did not, and is now concluded.

As going to show that she was not at fault in failing to bring the items now contested into issue at the settlement, appellee has averred in her amended bill that:

"Said William J. Young wrote her husband's will during his last illness and only a very short while before his death while in a hospital in the city of Montgomery, Ala. He is an attorney learned in the law, and was also a nephew of her husband. By reason of his having written the will and by reason of his great knowledge of the law, after she decided not to dissent from the will, the said William J. Young from time to time counseled with her with reference to the estate, and she informed him that she would not employ an attorney to look after her interest in the estate, and the said Young stated to her and also to William H. Watt, who is referred to in the will as the friend and partner of the said John Edward Wall, deceased, that it would not be necessary for her to have a lawyer, but that he would advise her fully as to her rights in the estate and would see that she should receive what she was entitled to under the will.

"Complainant further shows that she has very little education; that she does not know anything about bookkeeping or the stating of accounts; that she is and was ignorant of the law governing the provisions of her husband's will; and that on receiving the assurances from the said William J. Young that he would advise her fully as to her rights in the estate and see that she should receive what she was entitled to under her husband's will, she relied upon said assurances and trusted to the said William J. Young to fully protect her in her legal rights under her husband's will, and relied upon and trusted him to pay over to her the legacies and property bequeathed to her under the will. Relying upon him on account of the fact that he was an attorney, the nephew of her husband, and on his assurances hereinabove set forth that he would see that she was fully protected and would get what she was entitled to under the will, complainant did not employ or consult with an attorney as to her rights under the will. On account of her limited knowledge and ignorance she was not herself competent to examine the account for final settlement or know its full import and meaning, and because of the assurances of the said William J. Young hereinabove set forth, she did not get the assistance of any other attorney to go over the account for final settlement and did not

...