Badham v. Badham

14 So. 2d 730, 244 Ala. 622, 1943 Ala. LEXIS 292

• Court: Supreme Court of Alabama
• Decided: April 15, 1943
• Docket: 6 Div. 2, 3.
• Status: Published

Opinions

BROWN, Justice.

The order of submission entered in the circuit court, in equity, recites, “On this the 16th day of August, 1941, it is ordered by the court that this cause be submitted for decree on the sufficiency of the pleas to the bill of complaint as last amended and to the cross-bill as last amended.”

Following this submission on the same date the court entered the following order:

“This cause coming on to be heard was submitted for hearing and decree on the sufficiency of the pleas of Lila M. Johnston, as Guardian of the infant respondents to the Bill of Complaint as last amended and to the Cross Bill of Respondent, William T. Badham, as Trustee of the Estate of Leila J. Badham, Deceased, as last amended, and the same having been considered by the Court the Court is of the opinion that said pleas are sufficient,

“Wherefore, it is ordered, adjudged and decreed by the Court that said pleas to the said Bill of Complaint as last amended and to said Cross Bill as last amended, be and they are hereby held sufficient and that the sufficiency thereof be and is hereby sustained.

“Done and ordered, this the 16th day of August, 1941.”

At a later date the court entered the final decree in words as follows:

“Upon motion of respondents to dismiss said cause for that complainant was allowed thirty days from the 19th day of November, 1941, in which to amend the bill of complaint and to date hereof no amend ment has been filed, it is, upon consideration thereof,

“Ordered, adjudged and decreed by the Court that this cause, including the cross-bill be and it is hereby dismissed.

“Court costs accrued in said cause are hereby taxed against complainant for which let execution issue.

“Done and ordered, this the 23rd day of December, 1941."

From this decree the complainant and the respondent who filed the answer and cross-bill separately appealed and separately assigned errors.

Taking the recital of the final decree at its face value the respondent William T. Badham, as trustee under the will of Leila J. Badham, deceased, joined in the motion “to dismiss said cause” and can take nothing by his appeal.

No reason appears on this record why the original bill should have been dismissed. We assume the parties, and the court, proceeded on the theory that inasmuch as the special pleas filed to the bill were adjudged sufficient, that it was incumbent on the complainant to amend his bill and avoid the defense set up therein by pleading additional facts, or to disprove the pleas.

That position is untenable. The complainant had the option to amend if he could by alleging facts which would avoid the defenses specially pleaded, or take issue thereon. Templeton v. Scruggs et al., 234 Ala. 146, 174 So. 237. The effect of the pleas was to admit the allegations of the bill and, if the cause had been submitted for final decree and the pleas were not sustained by proof, complainant would be entitled to relief, assuming that there was equity in the bill. Prowell v. Wilson, 219 Ala. 645, 123 So. 38.

The submission being only to test the sufficiency of the pleas, complainant’s failure to amend the bill was tantamount to taking issue on the special pleas, and the burden was on the defendant to offer proof to sustain them, and it was error to dismiss the bill. Howell v. Howell et al., 171 Ala. 502, 54 So. 601; Prowell v. Wilson, supra.

The original bill is filed by Vernon Cosby Badham against William T. Badham, as trustee of the estate of Leila J. Badham, deceased, William Young Johnston and Leila Badham Johnston, minors, alleging that he is the principal beneficiary in the trust created by said will which, after certain specific bequests, bequeathed to and vested in said trustee, “All the rest, residue and remainder of my estate, real, personal, and mixed, wheresoever situated, which I may own at the time of my death * * * forever, in trust for the following purposes, to-wit:

“(1) To use, apply and expend from time to time as needed, as much of the trust property, income or corpus or both, as may be necessary or proper, for and to the comfort, support and maintenance of my husband, Vernon Cosby Badham, for and during the term of his natural life, the support and maintenance so to be furnished to him shall be ample and comfortable and fully up to his station in life and previous standard of living.

“(2) In order that the said Trustee may completely and easily accomplish and effectuate the aforesaid purposes of the trust, I hereby vest him with full power to take possession of the trust estate, and hold, manage and control the same, to convert into cash all or any part of the trust property, to invest and re-invest the trust funds, to operate the lease the farming lands, to hold and rent out the other realty, and to mortgage or sell all or any part of the trust estate, as in his judgment and discretion may seem wise, proper, necessary or expedient. All cost and expenses of administration shall be paid by the Trustee out of the funds of the Trust Estate from time to time as such costs and expenses become due.

“That the main purpose in creating this Trust is to provide an ample and comfortable support and maintenance for this said Vernon Cosby Badham, for and during the term of his natural life; and I direct that the provisions of the Trust be liberally construed, so as to fully and completely accomplish this purpose.

“That the property herein directed to be applied to the support and maintenance of the said Vernon Cosby Badham shall not be subjected by his creditors, if any, to the payment of his debts.

“That upon the death of the said Vernon Cosby Badham, and the complete accomplishment of the aforesaid purposes of the trust, then, if at that time, any balance of the trust property shall remain on hand, such balance, if any, shall be divided as follows: My store building No. 132 Broad Street, Eufaula, Alabama, to my niece, Leila Badham Johnston. The rest, residue, and remaining of the trust property shall be divided among my nephew, William T. Badham, my niece Leila Badham Johnston and my nephew, William Young Johnston, share and share alike, the division to be per stirpes. * * * ”

The bill alleges “that respondent is allowing complainant only $250.00 per month for support, which sum is not adequate to maintain complainant ‘comfortably and fully up to his station in life and previous standard of living’ his previous standard of living having been that of a man of wealth, and respondent refuses to provide more for said support until so directed by a court of competent jurisdiction.”

The bill prays for the interpretation of said fourth paragraph of the will, and for general relief.

The guardian of said minors appearing and pleading for them filed in their behalf several special pleas, setting up the pendency in the circuit court, in equity, Barbour County of the case of Badham et al. v. Johnston et al., filed by said minors in February, 1940, the scope and purpose of said proceeding, as stated in the opinion of this court on appeal, was:

“First, to remove the ancillary administration of the estate of Leila J. Badham, deceased, from the Probate Court of Barbour County to the Circuit Court, in equity; to enjoin the sale of certain property belonging to the trust estate and for the removal of the trustee.

“Second, to establish a trust arising out of an alleged gift, as a wedding present, of ‘Westover formerly known as the Williams place,’ an ancestral home and adjoining plantation, evidenced by letters and subsequent dealings therewith by the donor Leila J. Badham in her lifetime.

“Third, to determine and quiet the title to real property situated in the State of Georgia, as between the administratrix of Willie M. Johnston, deceased, and V. C. Badham sole distributee, under the laws of Georgia, of the estate of his wife, the said Leila J. Badham, deceased.” Badham et al. v. Johnston et al., 239 Ala. 48, 50, 193 So. 420, 421.

The pleas allege that the parties here were all parties to that bill. Plea 1 embodies the final decree of the court, which, omitting caption and recitals of an amendment not here material, is as follows:

“This cause is submitted upon the bill of complaint as finally and lastly amended, the answer of the respondents thereto, the petition of William T. Badham as Executor and as Trustee under the last Will and Testament of Leila J. Badham, deceased, setting up the basis of agreement of settlement made between him and the Complainants and especially with the Guardian of the minors involved in this suit, praying for a confirmation of said agreement and a decree of the Court incorporating the agreement and ordering its execution by the parties to this suit, the answer of the guardian of the minors admitting the allegations of the petition and joining in the request and prayer, answer of the Guardian ad Litem heretofore appointed by the Court denying the allegations of the petition and demanding strict proof, consent in writing by all of the parties to the hearing of this cause at this time and place, and to the taking of testimony orally, and the testimony this day taken orally before the Court and transcribed by the Court Reporter and filed in this cause.

“Upon consideration of the pleadings and oral testimony, it is the judgment of the Court that the petition of the Respondent, William T. Badham, as Executor and Trustee under the last Will and Testament of Leila J. Badham, deceased, should be granted. It is therefore ordered, adjudged and decreed by the Court:

“1st. That the settlement of said cause, and the' terms of the settlement, as set out in the petition of the Respondent, William T. Badham, hereinabove noted, be and the same is hereby, in all respects, ratified, approved and confirmed, it being the opinion of the Court that such settlement is for the best interest of the minors in this case.

“2nd: To effect the complete accomplishment and caring [carrying] out of said agreement, the Court does hereby order:

“(a) There is hereby vested in said two minors, Leila Badham Johnston and W. Young Johnston, jointly the legal title to the property described in the complaint as the Broad Street Store in Eufaula, Alabama,- subject to an estate in William T. Badham, as said Trustee, for and during the life of Vernon Cosby Badham, by means of a proper deed from said Trustee, which he is hereby ordered to execute and deliver, provided however that said Trustee, William T. Badham is hereby ordered to pay all ad valorem taxes on same during the life estate except those coming due sub sequent to the death of said V. C. Badham, and provided further that the Grantees, Leila Badham Johnston and W. Young Johnston, and their mother, Lila Johnston, who consents hereto, be and they are hereby ordered promptly to make all reasonable and necessary repairs and to keep the property at all times insured for $5000.00 against fire and windstorm, and promptly to repair with said insurance proceeds any damage or loss by fire or wind, unless there shall be a loss of 75%, total, or more, in which event there shall be no obligation to repair; provided further that on the termination of the present lease to McCrory Stores, the property shall be advantageously re-let immediately, and in the event the life tenant and the remaindermen cannot agree on a proper lease, Chauncey Sparks shall be empowered as the representative of all parties to rent said property from year to year during the life estate, and it is ordered that his contract of rental shall be binding on all parties; provided further that said conveyance shall be subject to a certain mortgage on said property to the Protective Life Insurance Company, in the sum of $1412.50, which the grantees are hereby ordered to pay, with interest from date of this decree, not later than April 27th, 1940, or to secure a release of said Executor and the life estate herein created from said mortgage by said date.

“(b) That said William T. Badham, as said Executor and Trustee, be and he is hereby ordered to execute a quit claim deed to Lila Johnston to the land referred to in the complaint as the Georgia property in Randolph and Quitman Counties, Georgia.

“(c) That all liability of every obligor on the injunction bond filed in this case be and is hereby completely discharged and said bond is hereby cancelled.

“(d) That all claims of said minors or on their behalf, filed or unfilled by them, or for them by Trustee or Guardian, against the estate of Leila J. Badham, be and the same are hereby cancelled, satisfied and discharged and released in full, and the Executor is hereby discharged from liability therefor.

“(e) That Lila Johnston individually, and as Guardian for said minors, be and she is hereby ordered to execute a statutory warranty deed to said Trustee, William T. Badham, to the property referred to in the complaint as ‘Westover,’ or the Williams Place, and there is hereby vested in him a clear and complete title to said property and the right to sell, which property and the proceeds thereof shall be held by him under the terms and for the purpose expressed in said Will, and also for the payment of such obligations against the trust property as this decree may declare.

“(f) That all debts now or hereafter due by said Executor William T. Badham, as such, shall be assumed by him as such Trustee, and paid by him out of the property in said trust, to the end that the estate of Leila J. Badham may be finally settled and the Executor discharged as soon as is practicable.

“(g) That the Court costs in this case be paid by William T. Badham, as Executor or as Trustee.

“It is further ordered that the Executor, William T. Badham, render his accounts to this Court for a final settlement of the estate of Leila J. Badham, deceased, within a reasonable time.

“It is further ordered, adjudged and decreed by the Court that all matters in this case be and they are hereby fully, finally and completely settled, both in regard to the administration of the estate of Leila J. Badham, deceased, and the trusteeship of William T. Badham under her will, except the final settlement of the administration and the proper enforcement of this decree, for which purposes alone the Court retains jurisdiction of this cause.

“It is further ordered that all necessary writs for the enforcement of the above decree may, from time to time, be issued in favor of the person entitled to the enforcement. * * * ”

As appears from its face said decree was a final decree confirming a settlement by the parties, on proof that it was for the best interest of the minors named, and cancelled and determined “all claims of said minors or on their behalf, filed or unfiled by them, or for them by trustee or guardian, against the estate of Leila J. Badham” and “can-celled, satisfied and discharged and released in full” all such claims, and discharged the executor from liability therefor. The decree concludes, “It is further ordered, adjudged and decreed by the Court that all matters in this case be and they are hereby fully, finally and completely settled, both in regard to the administration of the estate of Leila J. Badham, deceased, and the trusteeship of William T. Badham under her will, except the final settlement of the administration and the proper enforcement of this decree, for which purposes alone the Court retains jurisdiction of this cause.”

The controversy in the instant case in no way relates to the settlement of the ancillary administration but solely to the rights of Vernon Cosby Badham, the principal cestui que trust and his claim for adequate support out of the trust estate of which it was observed on the appeal from the Barbour circuit court, in equity, “The major purpose of the testatrix in setting up the trust was to make ample provision for the comfortable support and maintenance of her aged husband for and during the remainder of his life — he is the paramount object of her bounty — and to this end she invested the trustee with a broad personal discretion, authorizing him to sell and dispose of the property, or any part thereof as his judgment and discretion might dictate, and so long as he does not wrongfully abuse this broad discretion to the end of diverting the property or its proceeds to other purposes than carrying out the trust and preserving the corpus of the trust estate, this discretion should not be dominated and controlled at the instance of persons with a mere contingent or prospective interest. Hoglan et al. v. Moore et al., 219 Ala. 497, 122 So. 824. Such person is not entitled to what the bill terms ‘a marshal-ling of assets’ to protect a mere expectant interest. Ewing v. Bay Minette Land Co. et al., 232 Ala. 22, 166 So. 409.”

None of the pleas filed by said minors disclose with sufficient certainty the purpose and scope of the bill filed in the circuit court of Barbour County, and the decree attached to and made a part of one of said pleas shows that jurisdiction in that case was retained by the circuit court of Barbour County for the limited purpose of a settlement of the ancillary administration by the executor, and for enforcement of the settlement between the parties. The interest of said minors in such settlement is determined and concluded against them by said final decree. Taking as true the allegations of plea 1, yet construing them most strongly against the pleader, said settlement approved by the court between the parties was intended and did conclude and bar said minors from any contingent interest in the residuary estate under the will of Leila J. Badham, deceased.

The ancillary administration relates only to personal assets within the jurisdiction. Hatchett v. Berney, 65 Ala. 39; Grayson v. Robertson, 122 Ala. 330, 25 So.. 229, 82 Am.St.Rep. 80; 21 Am.Juris, p. 849, § 852.

The court, therefore, erred in sustaining the sufficiency of said pleas and in dismissing the bill.

Reversed and remanded.

GARDNER, C. J., and THOMAS and LIVINGSTON, JJ., concur.