94 So. 566 | Ala. | 1922
Pending the settlement of the estate of John W. Coker, deceased, on the equity side of the circuit court of Cherokee county, the guardian of his widow filed a petition, praying that homestead be assigned to her, and that appellant, as executor of the last will and testament of deceased, be required out of the funds of the estate to make provision for her support and maintenance. A copy of the will, duly probated, was exhibited with the petition.
It is urged as an objection to the petition and the relief sought that there is no description of lands out of which homestead is to be assigned, save that they are situated in Cherokee county, where deceased resided at and before the time of his death. Testator died seized and possessed of a large estate, including 2,000 acres of land in the county, all of which lands the executor has sold or contracted to sell. We presume in favor of the executor that such sale has been made, or is to be made, in pursuance of the power of sale conferred upon him, to be exercised when the appointed time should arrive for a division of testator's property among the beneficiaries named in the will. But that disposition, or attempted disposition, of the lands of testator, cannot bar the widow of her statutory right of exemption. Bell v. Bell,
Nor does it matter that petitioner guardian lived in a county different from that of the residence of his ward. His appointment was within the power of the appointing court. His residence in a different county was a consideration to be weighed in his appointment, but it cannot be made the subject of inquiry in this proceeding. Speight v. Knight,
Appellee's ward formerly resided with testator, her husband, in Cherokee county. Some years before testator's death he and his wife went on a visit to the state of Florida. While there Mrs. Coker became insane, and was committed to the asylum for the insane maintained by that state, where she has since remained a hopeless lunatic. These facts do not suffice to cause a forfeiture of her right of homestead in this state. Lewis v. Lewis,
Testator provided by his will for the maintenance of his widow. The language of the will at one place, after imposing on his executors — appellant is the sole surviving executor — the duty of providing, out of the rents, income, and profits of his estate, *356 ample, suitable, and proper maintenance, is that —
"The said executors are empowered and fully authorized to determine what constitutes such ample, suitable and proper maintenance."
It was also provided that, in the event other named executors should die, the trust created by the will should be executed by the survivor — appellant, as it happens — who was invested with all the powers and obligations imposed upon the three executors named. Appellant contends that the court had no authority by its decree to disturb the provisions made by the executor in the exercise of the discretion thus vested in him.
It is true in general that the court will not interfere with the exercise of discretionary powers conferred upon a trustee. But in this case something depends upon the proper construction of the trust, and the court will not favor a construction which would confer an arbitrary or capricious authority. McDonald v. McDonald,
Appellee's ward was confined in the lunatic asylum when testator made provision for her maintenance after his death. Testator's opinion as to the proper amount of the fund is shown by the provision of his will requiring his executors, when testator's grandchild Ruth Coker should become of age, or sooner in the event of her death, to set apart the sum of $5,000, to be put at interest for the support and maintenance of his wife. Such is the provision made by the decree of the circuit court. This court is not informed whether Ruth Coker has died or has become of age, but, without regard to that, the necessity of the case authorizes and requires the setting apart of the fund out of the income from which appellee's ward may be cared for.
Affirmed.
ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.