Davis v. Lambert

82 So. 529, 203 Ala. 279, 1919 Ala. LEXIS 228

• Court: Supreme Court of Alabama
• Decided: June 26, 1919
• Docket: 3 Div. 396.
• Status: Published

Opinion

SOMERVILLE, J.

We think the decree of the circuit court is based upon a correct construction of the will in question. Tilley, as Guardian, v. Letcher, Adm’x,. 82 South. 527; 1 Hinson v. Williamson, 74 Ala. 180; Boland v. Tiernay, 118 Iowa, 59, 64, 91 N. W. 836; Scholl v. Olmstead, 84 Ga. 693, 11 S. E. 541; Mullanny v. Nangle, 212 Ill. 247, 72 N. E. 385.

[1] The right to execute a personal trust, not being attached to the office of executor, though vested in the person so named, is not dependent upon that office, and is not lost by the donee’s discharge as executor.

[2] Inasmuch as the exercise of the discretionary power granted by item 5 of the will, viz., to sell the property devised to Mrs. Lasseter for reinvestment, is dependent upon a prior division of the estate, as directed in item 3, it is clear that, if a division is not otherwise effected by the devisees, the trustee, Lambert, would be authorized to institute proceedings in a proper forum for that purpose.

Let the decree of the circuit court be affirmed, with the addendum just above noted.

Affirmed.

ANDERSON, O. J., and MAXEIELD and THOMAS, JJ., concur.

1 Ante, p. 277.