103 So. 567 | Ala. | 1925
This appeal is from a final decree ordering the real estate described in the bill sold for division among the parties to the suit as tenants in common. It is insisted the demurrer to the bill as amended should have been sustained upon the theory that, although complainant also owned an interest in the reversion, he also owned the entire life estate of his mother, who is still living, and no sale for division could be had. Upon this question we rest content upon the holding of this court on former *541
appeal in this cause, to the effect that the bill could be maintained. Chapman v. York,
Another objection to the sale, which does not appear to have been previously presented or considered, is that it would contravene the will of the testator, F. M. York (whose will is set out in the report of the case on former appeal), wherein a division is provided for at the death of the widow who still survives. 30 Cyc. 185; Hill v. Jones,
We think it clear the will created no trust estate. Dee v. Dee, supra. The postponement of the date of division was for the benefit of the widow, and she having renounced the benefit and conveyed her interest to complainant, we find no obstacle to a sale for division as prayed. It is of course well recognized that all parties in interest should be before the court before a decree of sale is rendered. Chandler v. Home Loan Co.,
The bill as amended alleges complainant purchased the life estate of his mother. Complainant testifies, however, that he also bought the interest of the respondent, John York, but that he made the purchase for his mother, and that "it's in her name," to use his language. The point is made in brief of counsel for appellant (but we are not favored with brief from opposing counsel) that this is sufficient to show the mother owns the interest of John York, and that the court should not proceed to decree a sale in the absence of such interest — the mother not being a party to the suit. The point appears well taken for complainant claims only to have acquired the life estate of the mother. We might also add that there is no proof as to an administration of the estate of F. M. York by the executor, whether still pending, or that there were no debts of said estate. Chandler v. Home Loan Co., supra.
John York claims to have conveyed his interest to a trustee for his son, but it appears this conveyance was made after the filing of the original bill. Such being the case, neither the son nor the trustee need be made party to the suit. Such a purchaser takes subject to the pending suit, and is bound by the decree rendered. Griel v. Randolph,
Some of the respondents filed answer and cross-bill seeking an accounting of complainant for waste in having cut and removed valuable timber. The proof shows much of this timber was sold subsequent to the filing of the bill. The decree, in ordering a reference to ascertain the amount and value so cut and removed, limited the scope of the inquiry to the time prior to the filing of the bill. This was error, for in view of the evidence just indicated, the inquiry should also include any waste committed subsequent to the filing of the bill.
We are of the opinion, also, the decree of reference as to solicitor's fee should have been expressly limited to the value of services rendered which were of benefit to the common estate. Graham v. Graham,
In the decree the register was also directed to ascertain the value of the estate acquired by complainant's purchase from his mother. This was alleged to have been a life estate, and the only purpose of such direction would appear to be that the life estate be valued and paid to complainant. But, under the circumstances here disclosed, this could not be done without the consent of the others in interest. This question was considered in Kelly v. Deegan,
"The donor intended that on the expiration of the life estate, the entire fee, and no lesser interest should pass to the remainderman, and this intention it is the duty of the courts to preserve and effectuate and not to defeat."
The rule there enunciated for the guidance of the court was expressed in the following language, and here applicable:
"The tenant for life is entitled to the use of the money derived from the compulsory sale on partition with the cotenant of the testator, as she would have been entitled to the use and enjoyment of the land, if on an actual partition land had been allotted. This is the extent of her equity and right, but while awarding it to her, the rights of the remainderman must be protected and preserved. Upon the rule settled in Mason v. Pate,
The agreed statement of facts filed in the cause upon the previous submission was not a limited agreement, but was an unqualified admission of facts made for convenience and to expedite the trial. It has the appearance of having been intelligently and deliberately entered, into, and was properly admitted *542
upon this submission. Prestwood v. Watson,
Let the decree be reversed, and the cause remanded.
Reversed and remanded.
ANDERSON, C. J., and SAYRE and MILLER, JJ., concur.