Richards v. Richards , 98 Ala. 599 ( 1893 )

HEAD, J.

Tbe errors assigned are those sustaining tbe demurrers to, and the final decree dismissing, tbe bill. After tbe demurrers were sustained, tbe complainants declined to amend, and tbe court rendered a decree dismissing tbe bill.

We think tbe demurrers were properly sustained. Pleadings are required to be certain and- specific in their aver-ments of tbe material facts on which 'the right to relief depends, so as that it shall not be left to inference, merely, what those facts are. Tbe purpose of tbe present bill is to obtain a sale of tbe lands therein described for division among tbe complainants and defendants, as tenants in common, under authority of section 3262 of tbe Code. Tbe lands belonged to Thomas S. Bicbards in his life-time. By bis last will, which was duly probated in 1846, be disposed of them by the following clause: “5th. I leave andbequeatb to my wife and her children one negro man Peter, and all of my lands in this State and elsewhere, and all of my stock, consisting of horses and mules, cattle and bogs, and sheep, oxen, wagons and carts, plantation tools, household and kitchen furniture ; to her and her children, and at her death for to be equally divided between them all.” Tbe bill avers that this property was delivered to tbe wife and her children in accordance with tbe direction of said will, and was so retained and held np to about tbe month of September, 1890, when tbe widow died, “which,” to quote the words of the pleader, “fixed the period that all of the property mentioned in said fifth item of said will should be equally divided between all of them, that is, all of his children.” It is also averred that Thomas S. Richards was the “ancestor” of the complainants and defendants, and that they are, “under the yorovisions of said will,” joint owners and tenants in common of said lands. These are the only averments of ownership and possession upon which the relief is sought. The fifth clause of the will, as we have seen, is the source of title to those becoming entitled by the death of the widow. The bill sets out that provision, but fails to aver, except inferentially, that the parties to the bill fall within the class of persons who take under it, on the death of the widow. They are not shown, by any direct averment, to be either the children of the testator or the widow, intended by the testator as the objects of his bounty.

The complainants having declined to amend, the chancellor properly dismissed the bill.

Affirmed.