Zimmerman v. First Nat. Bank of Birmingham

Decision Date27 May 1977
Citation348 So.2d 1359
PartiesBonnie Gale ZIMMERMAN, a minor, and Miles Raymond Zimmerman, Jr., a minor, et al. v. The FIRST NATIONAL BANK OF BIRMINGHAM, as Trustee Under the Will of Hattie Lee Guess Matthews, Deceased. The FIRST NATIONAL BANK OF BIRMINGHAM, as Trustee Under the Will of Hattie Lee Guess Matthews, Deceased v. The FIRST NATIONAL BANK OF BIRMINGHAM, as Executor Under the Will of Harriet Matthews Zimmerman, et al. Bonnie Gale ZIMMERMAN, a minor, and Miles Raymond Zimmerman, Jr., a minor, et al. v. The FIRST NATIONAL BANK OF BIRMINGHAM, as Trustee Under the Will of Hubert W. Matthews, Deceased. The FIRST NATIONAL BANK OF BIRMINGHAM, as Trustee Under the Will of Hubert W. Matthews, Deceased v. The FIRST NATIONAL BANK OF BIRMINGHAM, as Executor Under the Will of Harriet Matthews Zimmerman, et al. SC 1987, SC 1987-X, SC 1988, SC 1988-X.
CourtAlabama Supreme Court

Michael F. Bolin, Birmingham, for Unknown Heirs and/or Unknown Parties in Interest.

Frank Dominick, Birmingham, for FNB as Executor under Will of Harriet Matthews Zimmerman.

Johnathan E. Lyerly, W. A. Jenkins, Jr., Birmingham, for Miles Raymond Zimmerman, individually and as guardian for Bonnie Gale and Miles R. Zimmerman, Jr., minors.

Rodney E. Nolen, Birmingham, guardian ad litem for Bonnie Gale Zimmerman, a minor and Miles R. Zimmerman, Jr., a minor.

Erle Pettus, Jr., Birmingham, for appellee and cross appellant FNB, as Trustee under Wills of Hattie Lee Guess Matthews and Hubert W. Matthews, deceased.

Jack B. Porterfield, Jr., Birmingham, for Wm. Hutchins Cole, Jr. and Hubert Matthews Cole.

John T. Natter, Birmingham, guardian ad litem for Wm. Hutchins Cole, III and all yet unborn children of Wm. Hutchins Cole, Jr.

Walter L. Mims, Birmingham, for Harriet Lee Cole Wiltsie.

Harold D. Rice, Jr., Birmingham, for Donna Lee Wiltsie and George Arthur Wiltsie, Jr.

BLOODWORTH, Justice.

This is an appeal from a judgment in consolidated actions for the construction of the wills of Hubert W. Matthews ("Testator") and his wife Hattie Lee Guess Matthews ("Testatrix"). We affirm in part and reverse in part and remand.

There are three issues which we answer as follows:

I. Was the trial court correct in holding that ITEM THREE of each will does not violate the Rule Against Perpetuities? Yes.

II. Was the trial court correct in holding that the term "my daughter's children" in each will does not include certain adopted children? No.

III. Was the trial court correct in assessing attorneys' fees for all parties against the trust estates of the Testator and the Testatrix? No.

The wills of the Testator and the Testatrix were executed in 1958. The Testator died on September 1, 1960, and the Testatrix died on January 5, 1966.

Both issues I and II, regarding the construction of the wills, arise from ITEM THREE, which in each will is substantially the same. The following is ITEM THREE of the Testatrix's will:

"ITEM THREE : All the rest and residue of my estate, real, personal or mixed, I give, devise and bequeath to my husband Hubert W. Matthews (my wife Hattie Lee Matthews, and my nephew, Cecil J. Matthews) in trust, for the following uses and purposes:

(a) For and during the lifetime of my daughter Harriet Matthews Cole, the income from the trust estate shall be paid annually or in more frequent installments to my said daughter.

(b) Upon the death of my daughter my trustees shall continue to hold and manage said trust estate and shall pay the income therefrom in equal shares, per stirpes, to my daughter's children for their education, support and maintenance. At the time each of my daughter's children attains the age of twenty-five years my trustees shall pay one half of the share of the trust estate to said child and the remaining one half at the time said child attains the age of thirty-five years. When the last of my daughter's children attains the age of thirty-five years the trust shall terminate. If any of my daughter's children die before receiving his or her share of the trust estate and leaving no bodily heirs, said share shall in that event be divided equally among the surviving children and shall be merged with and administered in like manner to other property held for him or her. . . . " (Italics supplied.)

ITEM THREE of the Testator's will contains the bracketed language instead of "my husband Hubert W. Matthews," and it contains a provision for payment of the income of the trust to his wife during her lifetime and then to his daughter during her lifetime. Section (b) above is identical to section (c) in the will of the testator.

The Testatrix was survived by her only child, Harriet Matthews Cole Zimmerman, who died on December 13, 1972. Harriet was survived by three children of a prior marriage to William H. Cole and by two children of her marriage to Miles Raymond Zimmerman, to whom she was married at the time of her death.

William H. Cole, Jr., a natural child was 27 years old at the time of his mother's death. Harriet Lee Cole Wiltsie ("Lee") was adopted in 1948 and was 25 years old at the time of her mother's death. Hubert M. Cole, also a natural child, was 21 years old at the time of his mother's death.

Bonnie Gale Zimmerman was adopted on August 30, 1965, the final decree being entered on April 3, 1967, and was seven years old at the time of her mother's death. Miles R. Zimmerman, Jr., was adopted on April 27, 1966, the final decree being entered on January 29, 1968, and was six years old at the time of his mother's death.

Both testators were fully aware of the adoption of Lee and had, in fact, been instrumental in her adoption. Lee lived in the home of the testators from the date of her adoption until shortly before the death of the Testator. She was accepted as a grandchild by the testators and was treated in the same manner as the two natural grandchildren.

Mr. W. H. Sadler, who had prepared both wills in 1958, testified without contradiction that he was instructed by the Testator to establish a trust for Harriet's three children. Harriet's only children at that time were William, Jr., Hubert, and Lee. The Testator also directed Mr. Sadler as to the terms of the Testatrix's will.

The Testator died before the adoption or even the birth of either of the Zimmerman children. The Testatrix died before the final adoption decree was entered for Bonnie Gale and before Miles, Jr., was born. The adoption of Bonnie Gale was begun about six months before the death of the Testatrix, who had, however, been completely senile for a period of three to four years prior to her death. There is no evidence that she was ever fully aware of Bonnie Gale.

After the death of the daughter Harriet, the First National Bank of Birmingham, as Trustee under the will of Hubert W. Matthews and as Trustee under the will of Hattie Lee Guess Matthews, brought the present actions for declaratory judgments construing the wills.

The trial court rendered the following judgment, inter alia: (1) "The provisions of ITEM THREE of the subject wills are not violative of the Rule Against Perpetuities"; (2) "Harriet Lee Cole Wiltsie, the adopted daughter of Harriet Matthews (Cole) Zimmerman, is included in the term 'my daughter's children' as used in ITEM THREE of the subject wills," but "Bonnie Gale Zimmerman and Miles Raymond Zimmerman, Jr., also the adopted children of Harriet Matthews Zimmerman, are not included in the term 'my daughter's children' as used in Item Three of the subject wills;" and (3) attorneys' fees for attorneys representing all the parties to the two actions "shall be paid equally by the testamentary trusts created by Hubert W. Matthews and Hattie Lee Guess Matthews."

Appeals have been taken from the judgment by the Zimmerman children, by the First National Bank of Birmingham, as Executor under the will of Harriet Matthews Cole Zimmerman ("Executor"), by a representative of unknown heirs and parties, and by Miles Raymond Zimmerman, individually and as guardian for the Zimmerman children.

The First National Bank, as Trustee under the wills of the Testator and the Testatrix ("Trustee"), has appealed the order directing it to pay all attorneys' fees from the trust estates.

I. Rule Against Perpetuities

The trial court's rationale for its holding that ITEM THREE does not violate the Rule Against Perpetuities is summarized in the following paragraph from the court's final decree:

"Applying the rule against perpetuities to the bequest found in ITEM THREE, it is apparent that the interest will vest within the period of the rule. Summarizing the application of the rule briefly, Hattie Lee Guess Matthews and Harriet Matthews Zimmerman are the measuring lives for purposes of this rule. Upon the death of Hubert W. Matthews, the interest will vest in the children of his daughter, but subject to open if additional children are later born. Upon the death of Harriet Matthews Zimmerman, the class of 'children' is finally ascertained and closed because of the fact that it would be impossible for Harriet Matthews Zimmerman to have additional children after the time of her death. At this time, the interest immediately and finally vests in those children who are in being. Since the interest vests no later than the death of Harriet Matthews Zimmerman, the life in being, it vests within the time period set forth in the rule against perpetuities; i. e., 21 years after some life in being. Thus, the requirements of the rule are satisfied."

As appellant on this issue, the Executor (under Harriet's will) relies primarily on the provision of ITEM THREE that if any child died leaving no bodily heirs his share would be divided equally among the surviving children and merged with and administered with the other property held for the survivors. The Executor argues that this provision indicates that the interests were not to vest until each child reached age 25 and age 35 and that consequently the interests might not vest within the Perpetuities period....

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