66 So. 36 | Ala. | 1914
This is a bill in equity to enjoin an action of ejectment. The ground for injunction is equitable estoppel. Appellant and appellee claim title, through a common source, one. Seth Bottoms, who was the father of appellee. Appellant claims by purchase and deed from Prudence E. Frederick, another daughter of Seth Bottoms. The common source of title, by will of date January 30, 1873, devised his property to-the two daughters in question. The will is short and is as follows: “Know all men by these presents: That I, Seth Bottoms, do will and bequeath to my two daughters, Prudence E. Bottoms and Martha E. Bottoms all of my estate, both lands and personal. The personal property shall be divided between the two daughters Prudence E. Bottoms and Martha E. Bottoms at my decease. My lands shall be divided as I shall prescribe. I do will and bequeath to my daughter Prudence E. Bottoms all of the lands belonging to the Jesse Weatherly place, or all of the lands that I bought of Jesse Weatherly with all of the improvements thereon.- I do will and bequeath to my daughter Martha E. Bottoms all of the lands belonging to the place I now live on with all improvements thereon. All the lands that I shall buy or enter shall be divided between the two said daughters. If Prudence E. Bottoms should decease without leaving any lawful heir, - Martha E. Bottoms shall have all of my estate; if Martha E. Bottoms should decease without leaving, any lawful heir, Prudence E. Bottoms shall .have- all of my estate. If I should decease before my wife Darkas Bottoms, she,'
The wil} was probated in Marion county October 24, 1904. A certain deed from the father to appellee was made a part of the petition, by exhibit, for probate of the will; but by agreement between the parties on a contest of the probate of the will, this exhibit was withdrawn, and the contest thereupon withdrawn; and the. will was probated without reference to the deed. The deed -in question was made August 13, 1903, and conveyed the lands in dispute to appellee, they being the same lands theretofore devised by the testator to Prudence E. Bottoms, through whom appellant claims by deed.
The exact terms of this agreement between the parties on the contest of the will, whereby the deed was withdrawn, the contest dismissed, and the will allowed to be probated, are in dispute; but the parol proof, aided by the record of the probate court of the proceedings probating the will, shows that appellee was seeking to have the will probated, with the deed as a part thereof, and that Prudence E., who would thereby be deprived of the lands devised to her, contested the probate of the will, but that, in consequence of the agreement, appellee, who was the proponent in the probate court, withdrew the. deed as a part of the will, and in consideration thereof, Prudence E. withdrew her contest, and the will, without reference to the deed, was probated. It further appears that appellee was in possession of the land in question, which was devised to Prudence E., at the time of the contest, and that after the will was probated she moved off the land and Prudence E. took possession, and held possession until
It has been ruled by this court that the compromise of matters in dispute between parties or litigants, in me absence of fraud, is of itself a sufficient consideration to uphold a contract of settlement which, when made, was binding on both parties.—Wyatt v. Evins, 52 Ala. 285; Allen v. Prater, 30 Ala. 458. On a subsequent appeal in the latter case (35 Ala. 169), it is said that the mere existence of a controversy, with no suit pending, without more, is not a sufficient consideration to support a verbal settlement; that there must, in addition, be some reasonable ground for the controversy. This has been frequently repeated by this court.—Crawford v. Engram, 157 Ala. 321, 47 South. 712. . Here there was a pending suit, and reasonable ground for the controversy.
As the agreement in question related to lands, and no writings were executed, of course it could not pass the legal title which had become vested by the will or the deed. If the parties had executed deeds in accordance with the agreement, there would be no need of a bill in equity to afford any relief to the parties; but it is on the theory that no such deeds were exe
If the deed in question was valid, and passed the title to appellee, then of course Prudence E. took no title under the will, and the probating of that instrument was neither beneficial nor detrimental to either party, so far as these lands were concerned.
At the time the will was offered for probate the deed was not thought by either party to be valid except as a testamentary document. This is shown by the fact that appellee offered it as a part of the will for probate; and it was not until this court held that it was valid as a deed, and was not a testamentary disposition, that the parties were certainas to' its effect.—See Mays v. Burleson, 180 Ala. 396, 61 South. 75.
As to the character of the estates which' Martha and Prudence took under the will, that question, which this court expressly declined to decide- on the former appeal (180 Ala. 75, 61 South. 75), is still a doubtful question; so there was certainly a real and bona fide dispute and contention between thei parties when they made the agreement for the settlement' of the difference between them. And it was, no doubt, the desire to avoid the' very kind of litigation which has ensued that induced the settlement.
As before stated, the records of the probate court, in part, bear out the contention of Prudence E. and appellant as to this settlement. While it was in part in parol, a portion of the consideration passed from one to the other, and the parties- were put in possession of the lands, and the case was therefore brought within the exception to the statute of frauds."
The evidence is undisputed that respondent surren-' dered the possession of the land in question to her sister immediately after the settlement, which was in ac-' cord with the agreement and wholly inconsistent with
The chancellor finds that there was no consideration moving to the respondent to make the settlement, which the complainant contends she made, as to the probate of her father’s will. In this we think the chancellor was in error. The consideration moving to her was that the will was to be probated without a contest, and by that she acquired title to lands other than those devised to her sister, and which were conveyed to her by deed. The deed was then thought to be good only as a, testamentary disposition, not good as a deed. If the deed had been good only as a testamentry disposition, as she and her attorneys then thought it to be, and the will was. not probated, the respondent
The probate of the will was contested on several grounds, some of which, if’ sustained, would have destroyed the will in toto, and also the deed. Such would have been the effect, if undue influence upon, or mental incapacity of, the testator and grantor had been established. Both of these grounds were in the contest, and the deed was then claimed to be a codicil to the will. The evidence satisfies us that these- defenses were-not feigned, but were made in good faith; certainly so far as the deed was concerned.
It would be unconscionable to allow the respondent to prosecute the ejectment suit to success, and recover these lands of the complainant. It would allow her to perpetrate a fraud upon the respondent, and upon the estate of her dead sister, who had warranted the title to this complainant, relying upon the agreement in settlement of their differences, as above detailed. Equity will not sanction or approve such conduct.
The following equitable principles and maxims, often reiterated by this and other courts, find fit application to the case made by this record: “The doctrine of estoppel is founded upon the primary and ultimate aims of the laws — the redress of wrong, the prevention of fraud, and the promotion of the ends of justice. Having its origin in good morals and in consid-.
“It is a sound and honest rule of equity, supported by principles of justice as well as of public policy, that if one knowingly though passively, suffers another to purchase and spend money on land, under circumstances which induce an erroneous opinion or mistaken belief of title, without making known his claim, he shall not afterwards, in a court of conscience at least, be permitted to successfully assert any right or title against the purchaser.—Hatch v. Kimball, 16 Me. 146; Marshall v. Pierce, 12 N. H. 136; Wendell v. Van Rensselar, 1 Johns, Ch. [N. Y.] 354; Blake v. Davis, 20 Ohio., 231.” Ala. Gt. Southern R. R. Co. r. South & North Ala. R. R. Co., 84 Ala. 570, 580, 3 South. 286, 290 [5 Am. St. Rep. 401].
“It is 'a just and well-recognized principle, that ‘He who is silent when conscience requires him to speak, shall be debarred from speaking when conscience requires him to keep silent,’ and again, ‘When a party negligently and culpably stands by and allows another
“The estoppel relied upon is known as an equitable estoppel, or estoppel in pais, and the law on the subject is well settled. ‘The vital principle [says Herman] is that he who by his language or conduct induces another to do what he would not otherwise have done shall not subject such person to loss or injury by disappointing the expectations upon which he acted. Such a change of position is sternly forbidden. It involves fraud and falsehood, and the law abhors both. The remedy is always so applied as to promote the ends of justice.’—2 Herman on Estoppel, § 934; Hendricks v. Kelly, 64 Ala. 391; Nelson v. Kelly, 91 Ala. 569, 8 South. 690; McCravey v. Remson, 19 Ala. 430 [54 Am. Dec. 194]; 7 Am. & Eng. Ency. Law, 18; 4 Am. & Eng. Dec., in Equity, 258.” Fields v. Killion, 129 Ala. 373, 376, 29 South. 797, 798.
We think the chancellor erred also in the construction which he placed upon the will in question. While in his opinion he says it is unnecessary to construe the will, since this court construed the deed on the former appeal (180 Ala. 396, 61 South. 75), yet the effect he gives to the will and the deed shows that he did construe the will as passing the title of all lands to Martha, after the death of Prudence without issue or children. The language of the will in question is as follows: “If Prudence E. Bottoms should decease without leaving any lawful heir, Martha E. Bottoms shall have all of
The phrase “lawful heir,” as here used, we agree with the chancellor means “children” or “issue,” and not the technical sense of “heir”; but the whole of the quoted portion, in connection with all the other parts of the item, does not mean that if the estate once vests in either daughter, it is nevertheless subject to be divested by the death of such daughter without children or issue. The estate granted was not subject to be defeated on the happening of such contingency. The period of time at which it was intended that the whole of the property should go to the survivor was the date of the death of one of. the daughters without child or issue, before the death of the testator. There was no intention shown that, if both daughters were living at the death of the testator, each should take a fee subject to be defeated or cut off by the death, without child or issue, of the other; but the clear intention of the testator was to provide that if one of - the daughters died before the testator, and left no child or issue, then the whole of the devise should go- to the survivor. Clearly the death of the testator was the period at which it was to be determined, whether the estate would go in the indicated shares to the two, or in whole to the survivor. It was not intended that if both were living at his death, the estate in fee which each took was subject to be defeated if she died without child or issue, and to' vest in the survivor.
The rule of construction as to such provisions is thus accurately stated in the text books: “Words of survivorship — to what period referred. Where the gift is to take effect in possession immediately upon the testator’s decease, words of survivorship are regarded as
“If there is an immediate gift to A., and a gift over in case of his death, or if he die, or any similar expression implying the death to be a contingent event, the gift over will take effect only in the event of A.’s death before the testator. * * * In regard to realty, if the devisee (divisor) gives A. the fee, a gift over in case of A.’s death, will be held to refer to his death before the testator.” — Id. p. 502.
The rule was quoted with approval in the case of Smith v. Smith, 139 Ala. 413, 36 South. 616, and also in the second appeal in the same case by both the majority and the minority of the court. Justice Anderson, now Chief Justice of this court, who wrote for the minority on the original hearing, and for the majority on the application for a rehearing, says, in his minority opinion, which was in substance the majority opinion on the rehearing: “I cannot agree to an affirmance of this case upon the conclusion reached by the court upon the former appeal when this case was
In his opinion, writing for the majority, he says:
“The testatrix having made a will, and being some years afterwards dissatisfied with it, declared in a codicil a deliberate purpose to change it, which she at once proceeded to do. This emphasizes the change, and is a caution to the courts to observe with care the mandates of the codicil embodying the change.—Crozier v. Bray, 120 N. Y. 374, 24 N. E. 712. The will gave a fee to the two nephews equally. The change is that their several children living at their death shall take their several parts in fee simple. This created contingent remainders for the children until birth, and vested remainders as born, subject to divesture by death before the parent and cut down the fee of the nephews to a life estate.”—Smith v. Smith, 157 Ala. 86, 47 South. 223.
Here, there is nothing in the will itself, and nothing in the codicil, to take the case without the rule announced in the texts and which was followed on the first appeal in Smith v. Smith, 139 Ala. 406, 36 South. 616, and approved on the second appeal.
Reversed and rendered.