Naugher v. Hinson

BOXJLDIN J. The purpose of the bill is set forth in the decision on former appeal. Hinson v. Naugher, 207 Ala. 592, 93 South. 560. We there sustained the general equity of the bill, but upheld the decree sustaining the demurrer thereto upon the special ground of misjoinder of parties. The will sought to be construed did not then appear in the record, without which it did not affirmatively appear that the children of decedent, other than complainant, took such interest ’ under the will as to make then^ proper parties. ¡Complainant thereafter amended section 4 of the bill setting forth the interests of the parties; the will being then an exhibit to the bill. The trial court overruled the demurrer to the bill as thus amended, and the present appeal is from that decree. The will being now before us, both parties argue questions going to its proper construction. These questions are not now for our decision as we held on former appeal, except for the purpose of passing upon the equity of the bill and the several grounds of demurrer presented. It is insisted that the will of the husband vests such title and beneficial interest in the wife, coupled with powers of control and disposition, without liability to account, that her discretion is absolute and not to be controlled nor directed. The main equity of the bill is the construction of the will — is to define the interests of the parties and the scope of the powers conferred. To illustrate, the bill charges that Mrs. Naugher, as executrix and trustee, claims the absolute power to make advancements in unlimited amounts as she may see fit. The complainant claims that under the will all the children are to share alike in the unconsumed portion of the estate after the mother’s death, less the advancements made by the father, and that the discretion to make advancements to the minor children as they become of age or get married is limited by this devise to all alike. Again, the bill challenges the mother’s absolute ownership of a life estate in the property, her right to the income therefrom except in trust for the support of herself and minor children. These, and other features of the bill, make it a proper case for construction of the will. Ashurst v. Ashurst, 175 Ala. 667, 57 South. 442. It is not the purpose of construction to substitute the will of another for the will of the testator. This will, besides devising a beneficial interest to Mrs. Naugher, accom-' panied with a trust for life, confers large discretionary powers. It bespeaks great personal confidence. These powers are to be defined, not restricted. No unnecessary burden in the matter of accounting as trustee fqr that which is personally hers should be added, and no needless consumption in costs. There are certain legal duties required of executors which cannot be negatived by the will. Among these is the filing of an inventory. Under our present statute the duty to make settlement is mandatory. The administration of an estate is a court proceeding. In due course it should end by a proper order made upon a showing as to the manner in which the duties imposed have been performed. Acts 1919, p. 566. The requirement of bond of an executor, who is relieved therefrom by the will, is only on a judicial finding that the estate is likely to be wasted to the prejudice of some person interested therein. Code, 1907, § 2541. These general comments are made, not by way of construing the will, but as outlining somewhat the nature of the issue presented by the bill. The decree of the court below is affirmed. Affirmed. ANDERSON, O. J., and SOMERVILLE and THOMAS, JJ., concur.