Opinion
2 Div. 367.
October 4, 1956. Rehearing Denied December 13, 1956.
Appeal from the Circuit Court, Dallas County, Jas. A. Hare, J.
T. G. Gayle, John W. Lapsley and Lapsley Berry, Selma, for appellants.
The life tenant with absolute power of disposition, not accompanied by any trust, had the right to use or consume the property devised to her under the will of her husband. Code 1940, Tit. 47, § 76; 36 A.L.R. 1228. The mortgages to the husband constituted personal property, choses in action, or indebtedness to be collected by the executrix of his estate, and were collected by her by foreclosure under power contained in the mortgages, and the proceeds derived therefrom constituted money or assets to be distributed by the executrix to the life tenant, individually, with absolute power of disposition, by use or consumption. Welsh v. Phillips, 54 Ala. 309; Arledge v. Ellison, 247 Ala. 190, 23 So.2d 389; Webb v. Sprott, 225 Ala. 600, 144 So. 569; Code, Tit. 61, §§ 189, 238; Batson v. Etheridge, 239 Ala. 535, 195 So. 873; Cook v. Whitehead, 255 Ala. 401, 51 So.2d 886; Butler v. Gazzam, 81 Ala. 491, 1 So. 16; Arnold v. Arnold, 124 Ala. 550, 27 So. 465; Miller v. Irby's Adm'r, 63 Ala. 477, 482; Tilley v. Barnes, 183 Ala. 510, 62 So. 761; Smith v. Cain, 187 Ala. 174, 65 So. 367; 158 A.L.R. 480; 33 Am.Jur. 496.
Pitts Pitts, Selma, for appellee.
Under the will of the husband, devising his estate to his wife during her life with absolute power of disposition, and at her death to vest in appellee, did not authorize the life tenant to dispose of the estate by will. Reeves v. Tatum, 233 Ala. 455, 172 So. 247; Alford's Adm'r v. Alford's Adm'r, 56 Ala. 350; Cain v. Cain, 127 Ala. 440, 29 So. 846; Fillmore v. Yarbrough, 246 Ala. 375, 20 So.2d 792; Holeman v. Quick, 246 Ala. 659, 21 So.2d 839; Mims v. Davis, 197 Ala. 88, 72 So. 344; Code 1940, Tit. 47, §§ 76-79. The life tenant was quasi trustee for the remainderman and held the superior outstanding title acquired by purchaser at foreclosure sale for joint benefit of herself and the remainderman. Sullivan v. Parker, 228 Ala. 397, 153 So. 858; Christopher v. Chadwick, 223 Ala. 260, 135 So. 454; Rushton v. McLaughlin, 213 Ala. 380, 104 So. 824; Batson v. Etheridge, 239 Ala. 535, 195 So. 873; 65 C.J. 223, 33 C.J.S., Executors and Administrators, § 107; 89 C.J.S., Trusts, §§ 114a, 151c; Smith v. Cain, 187 Ala. 174, 65 So. 367; National Mut. B. L. Ass'n v. Culberson, 126 Ala. 682, 25 So. 173; Evans v. Evans, 200 Ala. 329, 76 So. 95; Smith v. Hart, 259 Ala. 7, 65 So.2d 501.
Irvin W. Crenshaw died in March 1936, leaving a last will and testament whereby he devised all of his property, real, personal and mixed, to his wife Lillie T. Crenshaw, for and during her natural life, and at her death to go in fee simple to her nephew, Leslie Elmore, with the absolute power of disposition of any or all of the property in Lillie T. Crenshaw during her lifetime as she deemed best. The will appointed Lillie T. Crenshaw as executrix and it was duly probated in Dallas County.
At the time of his death Irvin W. Crenshaw owned certain real property in Dallas County, and was the owner of two first mortgages on real estate in that county. In 1937 and 1938 Lillie T. Crenshaw, as executrix, foreclosed these mortgages under the powers contained therein. The foreclosure deeds were made to Lillie T. Crenshaw.
In March 1953, Lillie T. Crenshaw died without having consumed or disposed of the real property and certain personalty. By her last will and testament she left this real and personal property to the respondents, some of whom are appellants here.
The complainant, Leslie Elmore, appellee here, filed his bill of complaint for a declaratory judgment, praying that he be declared the owner of the real estate, the rents therefrom since the death of Lillie T. Crenshaw, and the personal property which he alleged belonged to Irvin T. Crenshaw at the time of his death.
The testimony was heard ore tenus before the trial court and he found the issues in favor of the complainant. Only a few items of personal property were included in the decree because the parties had previously reached an agreement concerning most of them. The appeal is from this final decree.
It is conceded that the court correctly held that appellee was entitled to the real property which Irvin W. Crenshaw owned at the time of his death and which had not been consumed by his widow at her death. It further appears to be conceded that such property of the estate of the decedent as was not consumed by his widow during her lifetime, vested in the remainderman, Elmore, the appellee. Code 1940, Title 47, Section 76; Alford's Adm'r v. Alford's Adm'r, 56 Ala. 350.
Appellants' argument in brief seems to be directed at that part of the decree which is based upon the following part of the trial court's opinion:
"The court being of the further opinion that Lilly T. Crenshaw as executrix of the last will and testament of Irvin W. Crenshaw, deceased, and as the life tenant under said last will and testament, was a trustee for the benefit of the devisees, legatees and remaindermen under said last will and testament, subject to the absolute power of disposition; that the foreclosure of said mortgage by the said Lilly T. Crenslaw was nothing more than a conversion of personal property into real estate, and so long as trust property can be followed, the property to which it has been converted remains subject to the trust."
This finding and the decree based thereon that the appellee owned the interest of Irvin W. Crenshaw in the lands was supported by the evidence. Some of the cases supporting the decree are: Smith v. Cain, 187 Ala. 174, 65 So. 367; Evans v. Evans, 200 Ala. 329, 76 So. 95; Rushton v. McLaughlin, 213 Ala. 380, 104 So. 824; Reeves v. Tatum, 233 Ala. 455, 172 So. 247.
No reversible error having been brought to our attention, it follows that the decree of the lower court should be affirmed.
Affirmed.
All the Justices concur except MERRILL, J., who concurs in the result.