138 So. 537 | Ala. | 1931
The bill in this case is one by the appellees, Emma, Eugenia, and Willie Armistead, devisees under the will of James W. Armistead, deceased, against the other devisees, seeking a construction of the will by the circuit court, sitting in equity, and to declare the restriction against the alienation of the property unreasonable and void, that the property be sold for division among all the devisees, and that the interest of the children of the deceased daughter, May Armistead Reid, be reinvested and the income therefrom be paid to the complainants during their lives, for the allowance of solicitor's fee, etc. *45
The respondents, the children of May, demurred to the bill in its different aspects, on the ground that it is without equity, and specially to so much of the bill as seeks to have a solicitor's fee for complainants charged against the entire estate, on numerous and sundry grounds.
The demurrers were overruled by the circuit court, and from that decree the appeal is prosecuted.
In Kaplan v. Coleman et al.,
The provisions of the will and its codicil exhibited to the bill in this case, which appear in the reporter's statement of the case, are such as that the complainants were, under the rule above stated, entitled to invoke the jurisdiction of the circuit court to interpret the will and determine the status of the title and rights of the parties thereto, and the averments of the bill give it equity.
Whether or not the complainants are entitled to have their solicitors paid out of the corpus of the estate depends upon the nature of their right and title, and whether or not they are entitled to invoke a sale for division, and hence this question must await the interpretation of the will.
As was observed in Carroll v. Richardson,
And in Ashurst et al. v. Ashurst,
To the same effect is Powell et al. v. Labry et al.,
Sometimes it is necessary to the proper interpretation of a will for the court to know the circumstances and conditions surrounding the testator, the condition of his estate, and the condition and circumstances of the objects of his bounty. It is not enough that facts are merely alleged, they must be proved. Schowalter v. Schowalter,
The judgment here is, that the demurrers to the bill were overruled without error, and the decree of the circuit court will be affirmed.
Affirmed.
ANDERSON, C. J., and THOMAS and KNIGHT, JJ., concur.