Martin v. Martin

On Motion for Rehearing.

MERRILL, Justice.

In original briefs, appellant argued that the allegations in the bill that the check was not executed by the decedent, “are vague and indefinite in this; they fail to state in what manner M. T. Martin failed to execute the described checks.” We disposed of those contentions with this statement: “We also think the bill, as amended, is of sufficient certainty and particularity as not to be subject to those grounds of demurrer raising the lack of these requirements.” i

The original bill,' after describing the checks, contained the averment. “that neither said instruments was executed by the said testator, M. T, Martin, the same are both void abinitio and were not properly payable out of the funds or bank account of said M. T. Martin.” The amended bill added the following after explaining the information which came to appellee respecting the genuineness of the signatures: “Complainant avers that neither said purported check is the check, instrument or order for the payment of money of his testator M. T. Martin.” We think these allegations are sufficient as against the grounds of demurrer thereto addressed.

We do not consider that anything in this opinion impinges in any way upon our holdings in Battle v. Morris, 265 Ala. 581, 93 So.2d 428, or Henley v. Chabert, 189 Ala. 258, 65 So. 993.

Application overruled.

LIVINGSTON, C. J., and SIMPSON and GOODWYN, JJ., concur.