Ezzell v. Ezzell

SOMERVILLE, J. We have examined the evidence in this record — particularly that bearing upon the question of the delivery vel non of the deed from the decedent to the respondent Gertrude Ezzell — with critical care • and, while there is room for, a difference of opinion, we are satisfied that the decedent not only made the deed for the purpose of delivery, but that he actually delivered it in his lifetime to his daughter Gertrude, and thereby effectually vested in her the title, though possession was postponed until the grantor’s death. The question was one purely of fact, and we think it was correctly determined by the trial court. But, under our ruling in the recent case of Parker v. Robertson, 205 Ala. 434, 88 So. 418, the bill contains equity as a bill for partition, or sale for division, of the lands and property of the estate, notwithstanding the power given by the will to the executrix in that behalf. The bill should therefore have been retained for that purpose, subject, of course, to the condition of the estate at the time of the hearing. To this extent, and to this extent only, the decree of the circuit court will be reversed, and the cause remanded for further proceedings. In other respects the decree will be affirmed. Affirmed in part, and reversed and remanded in part. ANDERSON, O. J., and THOMAS and BOULDIN, JJ., concur.