Ezzell v. Ezzell

Supreme Court of Alabama

Ezzell v. Ezzell

105 So. 813, 213 Ala. 544, 1925 Ala. LEXIS 442

CourtSupreme Court of Alabama

DecidedOctober 15, 1925

Docket8 Div. 677-8.

StatusPublished

Cited by4 cases

This text of 105 So. 813 (Ezzell v. Ezzell) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ezzell v. Ezzell, 105 So. 813, 213 Ala. 544, 1925 Ala. LEXIS 442 (Ala. 1925).

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Opinion

SOMERVILLE, J.

We have examined the evidence in this record — particularly that bearing upon the question of the delivery vel non of the deed from the decedent to the respondent Gertrude Ezzell — with critical care • and, while there is room for, a difference of opinion, we are satisfied that the decedent not only made the deed for the purpose of delivery, but that he actually delivered it in his lifetime to his daughter Gertrude, and thereby effectually vested in her the title, though possession was postponed until the grantor’s death. The question was one purely of fact, and we think it was correctly determined by the trial court.

But, under our ruling in the recent case of Parker v. Robertson, 205 Ala. 434, 88 So. 418, the bill contains equity as a bill for partition, or sale for division, of the lands and property of the estate, notwithstanding the power given by the will to the executrix in that behalf. The bill should therefore have been retained for that purpose, subject, of course, to the condition of the estate at the time of the hearing.

To this extent, and to this extent only, the decree of the circuit court will be reversed, and the cause remanded for further proceedings. In other respects the decree will be affirmed.

Affirmed in part, and reversed and remanded in part.

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

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SOMERVILLE, J.

We have examined the evidence in this record — particularly that bearing upon the question of the delivery vel non of the deed from the decedent to the respondent Gertrude Ezzell — with critical care • and, while there is room for, a difference of opinion, we are satisfied that the decedent not only made the deed for the purpose of delivery, but that he actually delivered it in his lifetime to his daughter Gertrude, and thereby effectually vested in her the title, though possession was postponed until the grantor’s death. The question was one purely of fact, and we think it was correctly determined by the trial court.

But, under our ruling in the recent case of Parker v. Robertson, 205 Ala. 434, 88 So. 418, the bill contains equity as a bill for partition, or sale for division, of the lands and property of the estate, notwithstanding the power given by the will to the executrix in that behalf. The bill should therefore have been retained for that purpose, subject, of course, to the condition of the estate at the time of the hearing.

To this extent, and to this extent only, the decree of the circuit court will be reversed, and the cause remanded for further proceedings. In other respects the decree will be affirmed.

Affirmed in part, and reversed and remanded in part.

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

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105 So. 813, 213 Ala. 544, 1925 Ala. LEXIS 442, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ezzell-v-ezzell-ala-1925.

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