Citation Numbers： 183 Ala. 510, 62 So. 761
Judges： Anderson, Dowdell, Graffenried, Mayfield
Filed Date： 5/22/1913
Status： Precedential
Modified Date： 7/27/2022
— This is a bill by a trustee named in the will to remove the proceedings as to the administration of the estate from the probate into the chancery court for the purpose of having the court construe the Avill and the codicils thereof. The court entertained the bill and ordered the administration removed into the chancery court or into the city court having chancery jurisdiction and proceeded to construe certain parts of the Avill and codicils.
Some of the heirs, Avho are also legatees and devisees, Avere minors, and a guardian ad litem AVas appointed to defend for them in the court below; and from the decree in the lower court these prosecute this appeal and assign and insist upon error in that decree in the MIoaving particulars:
First, that the court had acquired no jurisdiction; second, that the trustee (appellee here), Avho was the wife of the testator, had the right, under the Avill, to sell the home place without the advice of certain persons named in the will whose advice was required as to the disposition of property other than the home place; third, that said trustee and widow had no right to use for life the surplus, in the event of a sale by .her of the home place; fourth, that the will was rendered void for uncertainty by reason of tAvo codicils thereto; fifth, that it was not intended by codicil No. 2 of the will to make the sale of the property other than the home place, mentioned in the will, by- the trustee, depend upon the consent of the persons named in the codicil; that it was intended only that the trustee might confer Avith such parties named as to the sale and not that their consent should be a condition precedent to such sale.
It is only in these respects that there is any insistence as to error; and hence we consider and review the de
We are of the opinion that the lower court unquestionably acquired jurisdiction to construe the will, and that it is certainly not void in toto and was not rendered so by the codicil mentioned. We are also of the opinion that the will authorized the trustee to sell the home place and other property on the conditions, in the mode, and for the purposes mentioned in the decree of the chancellor, and that the widow was entitled to the use, for her life, of any surplus that might remain after the sale of the home place and reinvestment in another home as decreed by the chancellor.
We find no error in the decree in the matters complained of on this appeal; and it would be improper and untimely for us to attempt to pass upon questions not insisted upon by the appellant- on the appeal.
It therefore follows that, in so far as this appeal is concerned, the decree will be affirmed.
Affirmed.