Cox v. Hutto , 216 Ala. 232 ( 1927 )

The appeal is from a decree overruling a demurrer to a bill in equity. Code, § 6079. The decree was entered February 18th, and the appeal taken on March 21, 1927, the 31st day after the date of the decree. March 20th, the 30th day, was Sunday. The appeal taken on Monday following was within time, and the motion to dismiss is overruled. Code, § 13; Stewart v. Keller,197 Ala. 575, 73 So. 89.

The bill is filed by E. M. Hutto and Minnie Hutto against the appellant and others as heirs at law and distributees of the estate of E. R. Kirby, deceased. In substance, it avers: That on October 2, 1923, E. R. Kirby and his wife, Mollie Kirby, "executed and delivered to these complainants a writing or contract agreeing to or obligating themselves to will to these complainants all of the real estate and personal property owned by the said E. R. Kirby and wife, Mollie Kirby, at the time of their death"; that E. R. Kirby died without complying with such contract; that at the time of his death he owned certain described lands, and personal property "consisting of cows, household goods, a stock of merchandise, notes and accounts due him, and money in the bank"; that complainants are in possession claiming to own said lands and personalty. The contract or writing made exhibit to the bill recites:

"That we, E. R. Kirby and wife, Mollie Kirby for the virtue, love and respect we have for E. M. Hutto and wife, Minnie Hutto, we are this day, October 2, 1923, entering into an obligation the following described property, to wit:

"To E. M. Hutto and wife, Minnie Hutto, while we are both in health and bind ourselves in this obligation to will all our real estate and personal property to them at our death it is understood that they shall care for us as long as we both may live and they are not to come in possession in any part of our property until both of our deaths."

Then follows the habendum clause, and full covenants of warranty usual to deeds is signed and acknowledged before a justice of the peace.

The bill further avers:

"These complainants allege that they have for years lived with or near the said E. R. Kirby and his wife, Mollie Kirby, and cared for them and looked after them as long as they lived, and that they fully and completely complied with all their terms and agreements of said contract,"

— and prays:

"That this court will make and enter a decree of specific performance against said respondents decreeing that said contract be specifically performed to make these complainants the owners of said real and personal property above set out."

The instrument is a contract to execute a will, operative upon the property owned at the death of testators, rather than a deed to specific property. It is supported by a valuable consideration.

The bill presents a proper case for relief in the nature of specific performance. The heirs succeed to and hold the legal title to the lands in trust for the complainants. Complainants are entitled to have this title divested and vested in themselves and their status as devisees and legatees adjudicated as if a will had been made according to contract. Stone v. Burgeson (Ala.) 109 So. 155;¹ Bolman v. Overall,80 Ala. 451, 455, 2 So. 624, 60 Am. Rep. 107; Manning v. Pippen,86 Ala. 357, 5 So. 572, 11 Am. St. Rep. 46; Walker v. Yarbrough, 200 Ala. 458, 76 So. 390; Mayfield v. Cook, 201 Ala. 187,77 So. 713; Poe v. Kemp, 206 Ala. 228, 89 So. 716; Taylor v. Cathey, 211 Ala. 589, 100 So. 834.

The contract having operation as a will, passing all the property owned at the time of decedent's death, the general description of the personal estate is sufficient. No inventory was required.

That the agreement to make a will was executed by husband and wife jointly does not render it invalid or unenforceable. Schumaker v. Schmidt, 44 Ala. 454, 4 Am. Rep. 135; 28 R. C. L. p. 166, § 122.

The bill sufficiently shows the death of both makers before the bill was filed, and that the husband survived the wife.

Code, § 8046, rendering conveyances of land in consideration of support of the grantor during life, voidable at his option by proceedings to annul in equity brought during his life, is defensive to a bill of this character, and must be set up by plea or answer and not by demurrer. Whether it applies to a contract to make a will, we need not here consider. In no event could that statute be construed to impair the obligation of contracts existing at the time it became effective.

Averments of section 7 of the bill appear to be framed under the statute to quiet title to lands. Code, § 9905. It does not call for the statutory answer (section 9906), nor for statutory relief (section 9908). As a bill of this character it is defective. But the demurrer goes only to question of multifariousness. The bill is not subject to this ground of demurrer. Code, § 6526; Reddick v. Long, 124 Ala. 260,27 So. 402.

Relief in the nature of specific performance is the substantial equity of the bill. The prayer for adjudication of title in complainants as against respondents is not inappropriate to this form of relief.

We find no error in overruling the demurrer.

No question is raised for nonjoinder of a personal representative of the estate, or want of averments of no necessity therefor. We mention this that our decision may not be misleading, especially in view of personal property of the estate involved in the suit.

Affirmed.

ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.

¹ 215 Ala. 23.