88 Ala. 408 | Ala. | 1889
This case was decided on demurrer, which was an admission of the truth of the averments of fact, as found in the bill. We will treat them as facts.
Andrew Bass, a resident of Jefferson county, died August 19, 1854. He left a last will, which was duly probated and established — the time of the probate not positively stated. The language of the bill bearing on this subject is as follows: “That shortly after the death of said Andrew Bass, the said Jane Bass, widow, etc., and your orator W. J. Bass, caused the will of said Andrew Bass to be probated, as hereinbefore stated, and letters testamentary, or of administration cum testamento annexo, to be issued to the said Jane Bass as administratrix, and the said W. J. Bass, as administrator of the estate of the said Andrew Bass, deceased, and duly qualified as such administratrix and administrator as aforesaid, and took upon themselves the jpint administration of the estate.” Testator left his widow, Jane Bass, and nine children surviving him, one of whom, George Bass, died without issue, never having married. The widow, Jane Bass, also died April 14, 1887, near thirty-three years after the death of Andrew Bass.
The following are extracts from Andrew Bass’ will: “I give all my property belonging to me, both real and personal, to Jane Bass, my beloved wife, her life-time.....It is my desire that, at the death of my wife Jane, that my property, both real and personal, be sold, and equally divided among my heirs,” &c. The present suit was instituted. March 26, 1889, by W. J. Bass and four others, children of Andrew Bass, against the remaining three children, of whom
The following extracts set forth the gravamen of the present bill: “That a few days before the death of the said Andrew Bass, he . . placed in the hands of one Willis Burns . . . the sum of fifty-two dollars and fifty cents, in lawful money, with which he directed the said Willis Burns to enter the north-west quarter of the south-west quarter of section five, in township seventeen, of range one west, in Jefferson county; but, by reason of some accident, or mistake, the said Burns failed to enter the said lands at the land-office in Tuskaloosa, Alabama, for the said Andrew Bass . . . but, at the death of said Andrew Bass, he, the said Burns, retained the said money in his hands. . . . That soon after the said Jane Bass had so qualified as the administratrix of her said husband’s estate, she, the said Jane Bass, went to Tuskaloosa, and filed in the land-office of the United States, then located in the said city of Tuskaloosa, her applicatiou to enter, and did enter, in her own name, the following described lands, situated in said county of Jefferson .... to-wit: the south-east quarter of the northeast quarter of section (6), and the north-west quarter of the south-west quarter of section five (5), and the east half of the north-west quarter of section eight (8), all in township seventeen (17), of range one (1) west, in said county of Jefferson; that in order to make said entry, and for the purpose of paying for the said lands so entered, she, the said Jane Bass, obtained the said money which had been so deposited and left by the said Andrew Bass in the hands of the said Willis Burns; that the said lands above described, under the laws of the United States then in force, then known and commonly known as the ‘Bit Law,’ were subject to entry at twelve and a half cents per acre, and were entered at that price by the said Jane Bass in her own name; but the same were paid for out of the fifty-two 50-100 dollars, which she, the said Jane Bass, had obtained, or, at the time of the entry, did obtain from the said Willis Burns, and which your orators and oratrix aver was the identical money which had been left with said Burns by the said Andrew Bass for the purposes aforesaid.” The bill then charges, that during the
The contention of complainants below, appellants here, is, that inasmuch as Jane Bass, the widow, had a life-estate under the will of Andrew Bass in all the estate he left, real and personal, with remainder to the children, she had, by force thereof, a life-estate in the money invested in the land, which gave her an equitable life-estate in the land itself; and the legal title being in her, they were not required to assert their claim, until, by her death, their right to present enjoyment accrued. It is certainly the general rule, that neither a statutory bar, nor prescription, runs against a remainder-man, until the termination of the estate of the life-tenant. There must be a right to sue, before the bar begins to run. 2 Brick. Dig. 220, § 35; lb. 221, § 54; 3 Brick. Dig. 618, § 10.
The present case, however, rests on a different principle. "When Andrew Bass died, the authority he had given Burns, to invest the money deposited with him in the purchase of the forty acres of land in section five (5), died with him. After that event, no one was lawfully authorized to carry out his wish. — 1 Wait’s Act. & Def. 290.
Mrs. Jane Bass, being personal representative of testator, was entitled to demand and receive the money from Burns; and when she received it, she held it in precisely the same right, as she held any other money belonging to'the estate. It was money, and in that money thus held she was entitled to a life-estate, after the payment of debts and funeral expenses. Till these paramount claims .were satisfied, she had no right to the money, sav9 in her representative capacity. And, even after the debts and funeral. expenses were paid, she had no absolute, personal right to the money, until its . restoration to the remainder-men at her death was secured. We mean the principal of the money; for the interest was hers. — Mason v. Pate, 34 Ala. 379.
Putting the money in land, did not, per se, substitute the
If it be contended that, because the remainder-men had no right to the actual possession until the death of Mrs. Bass, therefore they could not assert their election and right to take the land in lieu of the money, the answer must be, that they labored under no such disability. They had the clear right to hold her on her settlement liable for the money, as money converted; or, on a bill properly framed, to make their election to claim the land in lieu of the money, and either by the chancellor’s decree, or by reformation of the deed, have their rights in remainder secured to them. Belief to this extent they were entitled to, at any time after Mrs. Bass invested the money in land, taking the title in her own name. Such relief is akin to a proceeding to perpetuate testimony. — Bone v. Lansden, 85 Ala. 562. Or, on her settlement, they could charge her with the money converted, which would be an election not to claim the land.
Giving a liberal interpretation to the expressions in the bill — “shortly after the death of said Andrew Bass,” and “soon after the said Jane had so qualified as the administratrix — ” a very long period, more than thirty years, elapsed between the entry of said land and the filing of this bill. During all that time, the legal status of the transaction was, a conversion of the money of the estate by Mrs. Báss, and a purchase of land by and for her. No one, save the remainder-men, had the right or power to change that status, and they could only do it by electing to claim the land in lieu of the money. The bill is silent as to any act of administration done by Mrs. Bass, save her appointment and qualification as administratrix. Whether she performed any acts of administration or not, or, if she did, whether any of them were performed within twenty years before the bill was filed, we are without any guide for determining. In the absence of averment, taking the case without the influence of the twenty years presumption, we must and dp presume that Mrs. Bass settled her administration, and accounted for the
We may add, that twenty years acquiescence, or non-action, is a bar to the right to trace money into property in which it has been invested, and thereby to fasten a trust in, or lien upon it.
Affirmed.
