Little v. Ennis

Jan 12, 1922

2 Div. 773.

Versions:

AN0ERSON, C. J.

[1,2] Item 2 of the will of Robert W. Ennis gives his wife the property therein mentioned absolutely, while the other items of said will deal with other property, and qualified or limited the interest of Mrs. Ennis, and provide for the use, enjoyment, and ownership of same after her death. These subsequent items have no bearing whatever upon item 2, and apply only to the property covered by item 3, True, item 5 is not expressly limited by a specific reference to item 3, but it is manifest that it does not intend to deal with property covered by item 2, or attempt to cut down the absolute estate of Mrs. Ennis to a lesser one, or to make any disposition of same after her death. But, if a doubt could arise as to the meaning of item 5, standing alone, it is removed when considered in connection with items 4 and 6, and which indicate that the testator had in mind only the property covered by item 3, and not the property previously given his wife absolutely by item 2. Mrs. Ennis having died before her husband, the testator, there was no disposition under the will of the property embraced in item 2. Nor does the codicil, executed after the death of Mrs. Ennis, make any attempt to dispose of this property, or to enlarge the other items of the will so as to include or deal with same. We therefore think that the triál court correctly held that Robert W. Ennis died intestate as to the property covered by item 2 of the will.

[3-5] We have carefully examined and considered Exhibits B, O, and 0 of the bill (which will be set out by the Reporter), and cannot concur in the holding of the trial court, or the suggestion of counsel for the appellees, that they evince enforceable or collectable charges in favor of the estate against Lucille E. Little. They simply indicate what would be regarded as an advancement under the statute had Robert W. En-nis died intestate (section 3767 of the Code of 1907) and which seems to be exclusive as to advancements (Malone v. Malone, 106 Ala. 567, 17 South. 676). As Robert W. En-nis did not die intestate, this statute does not apply, and there was no advancement notwithstanding he may have been intestate as to some of his property. Green v. Speer, 37 Ala. 532; Cawlfield v. Brown, 45 Ala. 552. These advances do not create or indicate a debt due or owing from Lucille E. Little which would constitute an asset of the estate. Exhibit B in no sense establishes an obligation on the part of Lucille E. Little to repay the principal to her father or any one else, and is at most a mere consent that it should be treated as- an advancement in case Robert W. Ennis should die intestate. This also applies to Exhibit ,C. Exhibit 0 is not identical with Exhibits B or C, but the only obligation there indicated to repay is upon the personal demand of Robert W. Ennis, with the proviso that it should be treated as an advancement in case said Ennis never made a demand of payment. Therefore it was incumbent upon the appellees to show that their testator demanded the repayment of this amount in order to establish a collectable liability from Mrs. Little to the estate, and which was not done. These items, being nothing more than what should be regarded as advances under the statute had Mr. Ennis died intestate, cannot be charged to Mrs. Little, as her father did not die intestate. To hold that Mrs. Little should account for advances notwithstanding her father died testate would be opposed to the previous decisions of this court, and in effect make her account for advances without making the other children do so, in case they had received adyancements. The law presumes that, when a person makes a will, he will thereby provide against what he lias or may advance the beneficiaries therein named, and our statute with reference to advancements, and which is exclusive, is intended to apply only to the estate of an intestate.

[6] We cannot hold that these advancements operated as an ademption, in whole or pro tanto, of the bequest to Mrs. Little, as hers is not such a special legacy as to embrace or include the specific thing advanced. The only case that we have found in the Alabama Reports which refers to or has applied the rule of ademption of legacies is Gilmer v. Gilmer, 42 Ala. 9. There the bequest to Adams consisted of certain notes, including his own, and which last note the testator subsequently gave him before his death, and the court properly held that giving the note to Adams adeemed the legacy to the extent of said note.

[7] The trial court did not rule upon the relief sought by the cross-bill, and we therefore have nothing to review in this respect. It may be sufficient to suggest that, notwith *114 standing the will relieves the executors from making settlement in court, they may be compelled to do so under the Act of 1919, p. 566, amendatory of section 2686 of .the Code of 1907.

The decree of the circuit court is affirmed in holding that Robert W. Ennis died intestate as to the property embraced in item 2 of the will, but is reversed in so far as it makes Lucille E. Little accountable for the sums advanced her, and as represented by Exhibits B, C, and I), and a decree is here rendered discharging her from liability for same, and the cause is remanded at the cost of the appellees.

Affirmed in part, and reversed, rendered, and remanded.

McCLELLAN, SOMERVILLE, and THOMAS, JJ., concur.