Rasch v. Peters

78 So. 913, 201 Ala. 569, 1918 Ala. LEXIS 133

• Court: Supreme Court of Alabama
• Decided: April 4, 1918
• Docket: 8 Div. 66.
• Status: Published

Opinion

GARDNER, J.

The averments of the bill distinctly show that the respondent was by Catherine Specker created .her confidential agent, intrusted with the management of her lands, which trust relation continued for a period of years. Respondent was also intrusted, by tbe said Catherine Specker, with certain funds derived from the sale of personal property formerly belonging to the estate of Lorenzo Specker, deceased, together with certain portions of rents collected by him from year to year, with instructions to hold and preserve the same for the estate of Martin Specker, deceased. It further clearly appears from the bill that respondent has in his hands funds belonging to the estate of Martin Specker, deceased, intrusted to him by said Catherine Specker, the exact amount of which is a matter peculiarly within the knowledge of respondent, and that complainant, as executrix of the estate of Martin Specker, deceased, has demanded of the respondent an accounting, which has been refused. The respondent, therefore, under the averments of the bill, occupied a fiduciary relation, and had charge of a business necessarily involving a number of transactions for a period of years, and, as said in Hall v. McKeller, 155 Ala. 508, 40 South. 460, “a duty rests upon the defendant to render an account,” and “the agency is such that calls for the interposition of a court of equity.” There is therefore equity in the bill, and the assignment of demurrer taking that point was properly overruled. Hall v. McKeller, supra; Phillipps v. Birmingham Industrial Co., 161 Ala. 509, 50 South. 77, 135 Am. St. Rep. 156; Pom. Eq. Jur. vol. 4, § 1421; Pom. Eq. Jur. vol. 3, § 1058.

The remaining assignments of demurrer take the point that under paragraph 2 of the will of Lorenzo Specker, deceased, the personal property bequeathed to Catherine Specker was given to her absolutely, and that Martin Specker’ did not obtain by virtue of said will any reversionary interest in said personalty. The argument of counsel for appellant is almost exclusively directed to these assignments of demurrer. We are of the opinion, however, that a consideration of the question presented by these assignments of demurrer is unnecessary under the averments of the bill; for if it be conceded, for the purposes of this appeal only, that Catherine Specker by virtue of paragraph 2 of the will was given the absolute title to the personal estate, yet clearly, if so, she had a right to give the personal property, or the proceeds thereof, to the estate of Martin Speaker, deceased, and the bill distinctly alleges that the funds were delivered to the respondent for this express purpose by said Catherine Specker. It is therefore unnecessary to enter into a consideration of the construction of that part of the will here referred to, and forming the basis of the remaining assignments of demurrer.

It results that the decree appealed from will be here affirmed.

Affirmed.

ANDERSON, C. J., and McCLELLAN and SAYRE, JJ., concur.