Ex parte Garner

PER CURIAM. This is a petition for mandamus to Hon. Whit Windham, Judge of the Circuit Court, Jefferson County, seeking a writ requiring respondent to vacate an order transferring a case at law to the equity side of the court. Petitioner, as plaintiff, brought suit against C. F. Wittichen and others “as Trustees of the Wittichen Chemical Company, Inc. Employees Profit-Sharing Retirement Trust”. The complaint contains a common count for money had and received, and a count for breach of contract, each claiming the sum of $17,000.00. The latter count bases the alleged breach upon these facts: Effective January 1, 1951, Wittichen Chemical Company, Inc. entered into a written agreement with C. F. Wittichen, Jr., and two others (therein named), “as Trustees for the establishment of the Wittichen Chemical Company, Inc. Employees Profit-Sharing Retirement Trust”, wherein it was provided that as a reward for long and loyal service of the employees of the company it agreed to pay each year a portion of its profits to the trustees of said trust for the creation of a trust fund for the use and benefit of the employees. Thereafter the company did make such payments from its profits to the trustees for t-he years 1951 through 1963,- inclusive, and [113] a portion of said payments was credited to the account of the plaintiff during the continuation of her employment by the company from January 1, 1951 through January 31, 1963. On January 31, 1963, there was an involuntary severance of the plaintiff’s employment by the company and despite demands made by plaintiff upon defendants they have breached and continued to breach the terms of said agreement in that they have failed and refused to pay to plaintiff that proportion or share of the trust fund to which she is entitled. In due course, defendants filed a verified motion to transfer the cause to equity pursuant to § 153, Title 13, Code 1940. As grounds of the motion defendants assert that the complaint shows on its face that defendants are sued only in their capacities as trustees of said Employees Profit-Sharing Retirement Trust, and that all the relief sought by plaintiff in this action is claimed under and by virtue of the trust and that the granting of such relief would require the performance by said defendants of affirmative acts as trustees of the trust. The motion makes as exhibit thereto and as a part of the motion the agreement between the company and the trustees by the terms of which the trust was established. Additionally the motion specifies the several grounds of defendants’ defense to the plaintiff’s suit. We will not reproduce here the several asserted defenses. Sufficient to say that the substance of the motion to transfer is that defendants rely upon the terms and provisions of the trust agreement, which will necessarily have to be construed by the court, that equitable questions are involved, the decision of which should dispose of the cause and which cannot be disposed of on the law side. Upon examination of the pleading and the trust agreement upon which the suit is based, we are in agreement with the conclusion reached by the trial court, the respondent here. No contract is shown to have existed between the defendant trustees and the plaintiff. No interest on the part of defendants is shown other than that of trustees. .It appears that during the period involved there were 44 employees beneficially interested in the trust and its administration. Whatever right plaintiff, petitioner, has is that of cestui que trust, dependent upon construction of the trust. Trusts are of equitable cognizance and the creation and terms of a particular trust present issues of fact which are purely equitable. Morris v. Southern Realty and Const. Co., 203 Ala. 600, 84 So. 809; Henderson v. Henderson, 210 Ala. 73, 97 So. 353; Bellamy v. Pitts, 214 Ala. 467, 108 So. 327; City Bank & Trust Co. v. Garnder, 225 Ala. 136, 142 So. 535; Snellings v. Builders Supply Co., 228 Ala. 47, 152 So. 459; Pinckard v. Ledyard, 251 Ala. 648, 38 So.2d 580. It results that the petition for mandamus should be denied. Writ denied. LIVINGSTON, C. J., and SIMPSON, MERRILL and HARWOOD, JJ., concur.