author: SHORES, Justice. MADDOX, Justice

text:
    Henry VARNER v. Johnny LONG.
    Div. SC 2016.
    Supreme Court of Alabama.
    May 20, 1977.
    Ronald Edward Jackson of Hilliard, Jackson, Barnes, Cook, Mixon & Little, Bessemer, for appellant.
    David H. Hood, Jr., Bessemer, Houston L. Brown, Birmingham, for appellee.
   SHORES, Justice.

The facts giving rise to this controversy are clearly set out in Justice Maddox’ dissenting opinion, including the relief sought by Varner at the trial level and his efforts to obtain that relief.

We are in complete agreement with the dissenting members of the court that, under Jones v. Phillips, 279 Ala. 354, 185 So.2d 378 (1966), a violation of the Corrupt Practices Act is construed as mandatory if properly challenged prior to the election in a direct proceeding. If not so challenged, the provisions of that act are treated as directory only, after the election.

In this case, the appellant sought a temporary restraining order under Rule 65(b), ARCP, before the election. However, after filing his petition in the circuit clerk’s office, he failed to get a ruling from a circuit judge to enjoin the election or strike Long’s name from the ballot.

The record shows that on May 25, 1976, when Varner filed his motion for a temporary restraining order to enjoin the certification of the election results, this motion was presented on that date to Circuit Judge Harry E. Pickens, who signed the following statement on the motion:

“May 25, 1976: Presented this date and set for hearing on 3rd day of June 1976. at 10: AM.
“/s/ Harry E. Pickens Judge”

This is the earliest date shown by the record that Varner’s petitions for temporary restraining orders had been presented to a judge. This was some three weeks after the Democratic Primary Election, which was held on May 4, 1976.

A hearing on this petition was held on June 18, 1976, which resulted in a court order dismissing the petition. In that order, the court stated that Varner’s original complaint and motion for temporary restraining order was filed in the circuit clerk’s office on April 27, 1976, but was not served on the defendant until May 10,1976.

The only indication that any matter complained of by Varner in any of his petitions had been presented to a judge prior to the election is found in an affidavit filed by him on July 8,1976, in support of his motion for a new trial or motion to set aside the June 18th judgment of the court.

Other than this post-judgment affidavit, the record shows only that the original complaint was filed in the clerk’s office on April 27, 1976. No action was taken by any judge until the petition to enjoin the certification of the election was presented to Judge Pickens on May 25, 1976. Therefore, Jones v. Phillips, supra, does not mandate reversal of this case. In Jones, the challenger to the candidate’s name being placed on the ballot filed a bill seeking an injunction prior to the election and his petition was acted on by the court, prior to the election.

Here, the challenger simply filed his petition in the office of the clerk and took no action whatsoever to have the matter passed on by the court until after the election. We think the difference is material.

The judgment appealed from is, therefore, affirmed.

AFFIRMED.

BLOODWORTH, JONES, ALMON and EMBRY, JJ., concur.

TORBERT, C. J., and MADDOX, FAULKNER and BEATTY, JJ., dissent.

MADDOX, Justice

(dissenting).

This case involves a dispute between two candidates for election as a constable. Appellant (complainant) Henry Varner, filed an action seeking to keep the name of the appellee, Johnny Long, off the ballot in the May 4, 1976, Democratic Primary, as a candidate for the post of Constable, District 49, in Jefferson County, Alabama. Varner claimed that Long was disqualified as a candidate because he had failed to name a finance committee as required by Title 17, § 274, Code. Varner’s suit was filed prior to the primary, but the matter was not heard until after the election. Long won the primary overwhelmingly. Long filed a motion to dismiss Varner’s complaint and the trial court granted it, denying Varner any opportunity to present any evidence. Varner appealed.

The chronology of the proceedings is:

March 18, 1976: Long qualified as a candidate for Constable by filing his Declaration and Announcement of Candidacy, and paying the appropriate qualifying fees, with the Jefferson County Democratic Executive Committee and the Judge of Probate, in which he deleted the paragraph which would have named himself as his own finance committee. He left the following paragraph in the qualification form:

“(b) I hereby certify that I will, within five days after filing this announcement of candidacy, file with the Secretary of State and/or Probate Judge(s), a supplement to this qualification form giving the appointments and acceptances of my Campaign Finance Committee as required by Sections 274 and 275 of Title 17 of the Alabama Code. (See Attorney General’s Opinion of January 25, 1974.)”

On March 29, 1976, after the qualifying deadline, Long filed an amendment to the Declaration and Announcement of Candidacy previously filed with the Judge of Probate, for the purpose of naming himself as his own “finance committee,” pursuant to Tit. 17, § 274, Code (Corrupt Practices Act).

On April 13, 1976, Varner retained counsel to represent him in his challenge to Long’s candidacy and by and through his attorney, challenged the qualification of Long, by writing a letter to the Jefferson County Democratic Executive Committee.

On April 19, 1976, S. David Herring, Chairman of the Jefferson County Democratic Executive Committee, wrote a letter to Varner’s attorney, Ronald Edward Jackson, requesting the basis for Varner’s challenge of Long’s qualifications.

On April 19,1976, Jackson wrote Herring, telling him that the challenge to Long’s candidacy was “predicated upon Title 17, § 274 of the Alabama Code,” and requested an “early hearing,” by the appropriate committee.

On April 27, 1976, Varner filed the complaint naming Long as a defendant. He asked for a Temporary Restraining Order. His request was not honored.

On May 4, 1976, the Democratic Primary election was held and Long won by a margin of almost two-to-one.

On May 25, 1976, Varner filed his motion to enjoin the certification of the election returns' the motion was set for hearing on June 3, 1976.

On May 31, 1976, the Jefferson County Democratic Executive Committee, through its chairman and secretary, S. David Herring and Clara S. Crowder, respectively, certified the name of Johnny Long to the Probate Judge as the party’s nominee for the position of constable, for the 49th Legislative District.

On June 4,1976, Long filed his motions to dismiss and for summary judgment. Hearing was held on this date and continued for purposes of allowing Varner to submit a brief on the law applicable to the issues.

On June 18, 1976, Long’s motion to dismiss was granted by the lower court and the appropriate order entered on June 22, 1976. The order reads, as follows:

“This cause coming on to be heard on the 18th day of June, 1976, and the Defendant, Johnny Long, being represented by his Attorneys of Record, Hon. David H. Hood and Hon. Houston L. Brown, and the Plaintiff, Henry Varner, represented by his Attorney of Record, Ronald Edward Jackson, and the Court having read the Complaint and Motion for Temporary Restraining Order, which was filed in the Circuit Clerk’s Office on April 27, 1976, which was not served on Defendant, Johnny Long, until May 10, 1976: Motion for Temporary Restraining Order to Enjoin Certification of Constable of District 49 Election Returns, filed May 25,1976, and set for hearing on June 3,1976; Motion for Summary Judgment and Motion to Dismiss filed for Defendant, Johnny Long, June 4, 1976, and the Court having considered the pleadings and heard arguments of counsel is of the opinion that the Motion to Dismiss is well taken and should be granted and the Court after considering the same:
“Orders, Adjudges and Decrees the following:
“ONE: The Motion to Dismiss is granted.
“TWO: That the tardy filing of appointment of Finance Committee by Defendant Long with the Probate Judge of Jefferson County cannot reasonably be considered of a character to obstruct the free and intelligent casting of votes by the electors of District 49 or to have affected the ascertainment of the result. Nor was the late filing of such dereliction an essential element of the election.
“THIRD: That Plaintiff filed his complaint and motion too late to have this matter adjudicated prior to the election.
“FOURTH: That costs of these proceedings are taxed against Petitioner for which let execution issue.
“Done and Ordered this 18th day of June, 1976.
“/s/ Harry E. Pickens CIRCUIT JUDGE”
[Emphasis supplied.]

The primary issue is whether compliance with Title 17, § 274, Code, is mandatory or directory. Varner claims it is mandatory. Long agrees that courts have enforced violations of Title 17, § 274, as mandatory when raised in a direct proceeding before an election, but that the section is directory only when noncompliance with it is raised after an election.

The question has been answered in Jones v. Phillips, 279 Ala. 354, 185 So.2d 378 (1966), where this Court opined:

“We come now to the real question— whether the provisions of Sec. 274, as amended, are mandatory. We conclude that they are insofar as the forthcoming primary election to be held on May 3, 1966, is concerned.

“An announcement of candidacy in a primary election, under Tit. 17, § 274, as amended, is made when the candidate files his official declaration of candidacy in the form prescribed by the governing body of the party with the Chairman of the County Executive Committee, if he be a candidate for a county office, or with the Chairman of the State Executive Committee, if he be a candidate for any office except a county office, and this declaration must be filed with the proper chairman not later than March first, next preceding the holding of such primary election. Tit. 17, § 348, Code 1940.

“Here, appellant’s official announcement of candidacy was on January 22, 1966. He had five days from that date to comply with Sec. 274. This he did not do. This was just as much a part of his qualification as a candidate as was the paying of his qualification fee to the proper chairman of his party. The penalty provided for failure is that his name shall not go on the ballot. Tit. 17, § 275.

“What is now Tit. 17, §§ 274 and 275 were enacted in 1915, and Sec. 275 has not been amended. But in 1959, the legislature, of which appellant was a member, amended the five-day provision in Sec. 274. The legislature wanted to spell out clearly what the five-day limitation meant and this new sentence was added to Sec. 274: Tf the statement required herein shall have been postmarked at any United States post office not later than midnight of the fifth day after the announcement of his candidacy, the candidate shall be deemed to have complied with the requirements of this section as to filing such statement within five days after the announcement of his candidacy.’

“And in the first sentence of the section, the legislature made it crystal clear that even though state representatives and senators were state officers, they should file these statements, not only with the Secretary of State, but with the judges of probate in the counties or districts in which they were running. Prior to this amendment, there had been some question as to whether candidates for the legislature were required to file the statements in the counties, but this amendment dispelled all doubt on this subject.

“This court has already held that the filing provisions under these statutes are mandatory before elections. In McCutcheon v. Thomas, 261 Ala. 688, 75 So.2d 649, we said:

“ ‘We are fortified in taking the aforesaid view of the statute by our cases which hold that violations of the corrupt practice act will be construed as mandatory prior to the election in a direct proceeding but only directory after the election. In Garrett v. Cunninghame, 211 Ala. 430, 100 So. 845, 853, this court in commenting on the case of Patton v. Watkins, 131 Ala. 387, 31 So. 93, 90 Am.St.Rep. 43, quoted from Judge Freeman in his comprehensive note reported in 90 Am.St.Rep. 43, 49, as follows:

“ ‘ “All the provisions of the election law are mandatory if enforcement is sought before election in a direct proceeding for that purpose; but after election all should be held directory only, in support of the result, unless of a character to effect an obstruction to the free and intelligent casting of the vote, or to the ascertainment of the result, or unless the provisions affect an essential element of the election, or unless it is expressly declared by the statute that the particular act is essential to the validity of an election, or that its omission shall render it void.” * * * [Emphasis supplied.]

It is undisputed that Varner sought before the election in a direct proceeding to keep Long’s name off the ballot. He filed his complaint on April 27,1976, and contemporaneously asked for a temporary restraining order. Long was made a party to these proceedings; therefore, his reliance on Vickery v. King, 281 Ala. 303, 202 So.2d 148 (1967), where the candidate was not made a party to the proceedings until after the election is misplaced. Here, the action was commenced when Varner filed his complaint. Rule 3, ARCP.

The trial judge made a finding that Var-ner “filed his complaint and motion too late to have this matter adjudicated prior to the election.” There is no support in the Rules of Procedure, the statutes, or in our cases, that a direct action against a party commenced at least 7 days prior to an election is “too late.” In fact, the trial court granted the defendant’s motion to dismiss and based it upon the “pleadings" and “argument of counsel.” Furthermore, the trial court specifically held that “plaintiff filed his complaint and motion too late to have this matter adjudicated prior to the election.” This Court not only affirms that finding but also holds that “ * * * the challenger simply filed his petition in the office of the clerk and took no action whatsoever to have the matter passed on by the court until after the election.” Respectfully, that finding by the majority is a finding on a material fact in issue, made on review of the grant of a motion to dismiss. A motion to dismiss should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Carter v. Calhoun County Board of Education, Ala., 345 So.2d 1351 (decided May 6,1977). There is some evidence in the record, in the form of an affidavit on motion for new trial, that the plaintiff had a copy of the complaint and motion for the temporary restraining order delivered to the defendant’s wife; that he talked to Judge Pickens about the matter prior to the election; that Judge Bridges would not handle the matter since it was assigned to another judge. Since there is evidence that the motion for temporary relief was brought to the attention of a circuit judge with the power to grant the relief, I believe that the trial court’s finding that his complaint was filed “too late” is not only erroneous as a matter of law, but also because he makes a finding of fact on a controverted issue on a motion to dismiss. The rule of law announced in Jones v. Phillips, is that Section 274 is as much a part of a candidate’s qualification as was the payment of his qualifying fee, and that “all the provisions of the election law are mandatory if enforcement is sought before election in a direct proceeding for that purpose. . It is undisputed that Varner sought, before the election in a direct proceeding, in which Long was made a party, to prevent Long’s name from being placed on the ballot. The law does not require that the litigant obtain relief before the election, only that he seek it. This Varner did. I would reverse the judgment of dismissal of his complaint.

TORBERT, C. J., and FAULKNER and BEATTY, JJ., concur.

      . Title 17, § 274, Code, reads, in relevant part:
      “Within five days after the announcement of his candidacy for any office, each candidate for a state office shall file with the secretary of state, and each candidate for a county office or the state house of representatives shall file with the judge of probate of the county, and each candidate for a circuit or district office, including the state senate, shall file with the judge of probate of each county which is embodied in said circuit or district, a statement showing the name of not less than one nor more than five persons elected to receive, expend, audit, and disburse all moneys contributed, donated, subscribed, or in any way furnished or raised for the purpose of aiding or promoting the nomination or election of such candidate, together with a written acceptance or consent of such persons to act as such committee, but any candidate, if he sees fit to do so, may declare himself as the person chosen for such purpose. . . . ”


source: Caselaw Access Project

author: SHORES, Justice. FAULKNER, Justice

license: Public Domain

text:
    CRIPPLED CHILDREN'S FOUNDATION v. Mrs. Sue CUNNINGHAM et al.
    SC 2176.
    Supreme Court of Alabama.
    May 20, 1977.
    James C. Barton and Henry J. Swedlaw, of Johnston, Barton, Proctor, Swedlaw & Naff, Birmingham, for appellant.
    Joseph A. Lee, of Lee & Lee, Scottsboro, for appellees.
   SHORES, Justice.

This appeal is from a judgment entered in an action brought for the construction of the joint will of Sam P. Hinshaw and Thelma G. Hinshaw. The plaintiffs are the heirs and next of kin of the Hinshaws, who filed the action against W. R. Hinshaw, as executor and successor trustee under the last will and testament of Mrs. Thelma G. Hinshaw, the Baptist Children’s Home in Troy, Alabama, and the Crippled Children’s Foundation in Birmingham, Alabama.

On September 17, 1960, Sam P. Hinshaw and his wife, Thelma G. Hinshaw, executed the aforementioned joint will. Item 2 provided:

“2. We and each of us have agreed and do hereby agree, will, devise and bequeath at the death of the last survivor of the undersigned, any and all property held by the last survivor after the payment of any and all debts, as provided hereinabove all the rest and residue of our estates, if there be any after the last survivor has used, sold or otherwise disposed of our property as the survivor is authorized to do hereinabove, to the First National Bank, Scottsboro, Alabama, as trustee, the residue of our estates, if there be any, to be held by said bank and investing as it deems best, and from the income therefrom and the corpus of said residue, said First National Bank, Scotts-boro, Alabama, as such trustee is required to pay to the Baptist Children’s Home at Troy, Alabama, and to the Crippled Children’s Clinic [changed later to Foundation], at Birmingham, Alabama, the sum of One Hundred ($100) Dollars each and every year to each of said institutions, in memory of the undersigned.”

The joint will made no provision for the heirs or next of kin, of either Mr. or Mrs. Hinshaw, in any form. The Hinshaws were childless and their next of kin consists of siblings, nieces and nephews.

Mr. Hinshaw predeceased his wife. Subsequent to Mr. Hinshaw’s death, Mrs. Hin-shaw executed a codicil to her last will, which stated in substance that inasmuch as the First National Bank of Scottsboro, named as trustee originally, had not formed a trust department, she appointed W. R. Hinshaw as successor trustee of the trust set up in Item 2. No other change was made by this codicil. Mrs. Hinshaw died in December, 1974, and her will was admitted to probate in March, 1975. The Hinshaw heirs brought the declaratory judgment action in August, 1975.

It was the position of the Hinshaw heirs that the purported trust for the benefit of the Crippled Children’s Foundation in Birmingham and the Baptist Children’s Home in Troy, as created under the Hinshaws’ joint will, was invalid and the trust property, therefore, descended to and vested in the Hinshaw heirs. The Baptist Children’s Home in Troy asserted the validity of the trust, as did the Crippled Children’s Foundation, which also asserted a counterclaim asking the court, in the event of surplus trust funds, over and above $100 per year each as provided in the will, to divide the entire net income from the trust between the Foundation and the Baptist Children’s Home.

The trial court determined that a valid charitable trust was created by the joint will and that the beneficiaries were the Foundation and the ' Baptist Children’s Home. It directed the trustee to pay each of these two charitable institutions $100 per year, but further held that any excess or surplus trust property belonged to the Hin-shaw heirs. The Foundation appealed from this judgment.

The property involved consists of some 300 acres of land, some of it cultivatable, and some of it “mountain” land. It was estimated to have a value of approximately $100,000. There is no personal property of any significance.

Both sides to this controversy assert that it is obvious that the trust will produce much more than $200 per year, which the Hinshaws directed the trustee to pay to the two charities. Therefore, the heirs argue that any amount in excess of a fund sufficient to produce this $200 per year, plus cost of administration, should be divided among them. The charities, on the other hand, argue that whatever amount the trust estate produces should be divided equally between them.

It is this court’s responsibility to ascertain and give effect to the intention of the testator. It is that intent which controls the construction of a will, and such intention is to be arrived at by reference to the entire document, read in light of the circumstances under which the will was written. Perdue v. Roberts, 294 Ala. 194, 314 So.2d 280 (1975); Sellers v. Sellers, 270 Ala. 173, 117 So.2d 386 (1960).

Before considering the language of the Hinshaw will itself for purposes of construing it, it might be helpful to restate some of the general rules applicable to such cases.

There are several rules of construction which have been developed to aid courts in their search for the intention of the testator, some of which are applicable here. First, charitable gifts are viewed with particular favor and every presumption, consistent with the language of the instrument, should be employed to sustain them. Village of Hinsdale v. Chicago City Missionary Society, 375 Ill. 220, 30 N.E.2d 657 (1940). This court has said, as Justice Maddox pointed out in his dissent in Baxley v. Birmingham Trust National Bank, Ala., 334 So.2d 848 (1976):

“In Russell v. Allen, 107 U.S. 163, 167, 2 S.Ct. 327, 330, 27 L.Ed. 397 (1882), the Supreme Court of the United States said:
“ ‘. . . [T]rusts for public charitable purposes are upheld under circumstances under which private trusts would fail.’ ” (334 So.2d at 855)

One court has stated the rule thusly:

“. . . [GJifts to charitable uses are favored and are to be construed by the most liberal rules that the nature of each case, as presented, will permit, rather than that the gift should fail and the charitable purpose of the donors be not accomplished. . . . ” Quinn v. Peoples Trust & Savings Co., 223 Ind. 317, 60 N.E.2d 281, 286 (1945).

Secondly, absent some contrary intention which is so plain as to compel a different conclusion, it is presumed that the testator intended to dispose of his entire estate and did not intend to die intestate as to any portion of his property. First Church of Christ v. Watson, 286 Ala. 270, 239 So.2d 194 (1970). Particularly where the residuary clause is involved, the law presumes the testator intended to dispose of his entire estate. First National Bank of Birmingham v. Klein, 285 Ala. 505, 234 So.2d 42 (1970)

Applying these general rules to the instant case, it seems clear that the Hinshaw will clearly indicates that the underlying intent of Mr. and Mrs. Hinshaw in disposing of their property was charitable in nature. By Item 2 of their will, they direct that any and all property held by the last survivor, if there be any, is devised and bequeathed to the trustee, with directions that the residue of the estate, if there be any, should be invested and that the income therefrom, and the corpus of said residue, should be used to pay each of the two named charities the sum of $100 each year.

The will involved in Quinn v. Peoples Trust & Savings Co., supra, contained an item which provided that all the residue of the testatrix’ estate should be paid over to a trustee which was directed to set up a trust fund to be used for the college or university education of children of employees of the Pennsylvania Railroad Company. The will said expressly that “. . . This is done by me in memory of and in honor of my deceased brother . . .” (60 N.E.2d at 283), who was an employee of that railroad company. The provision went on to say that only one child should receive the benefits of the trust at one time, and that the amount to be paid the recipient of the trust “. . . shall not exceed eight hundred dollars ($800) per year and shall not be paid to any one person for more than four years.” (60 N.E.2d at 283)

In that case, the heirs of the testatrix argued that, if the trust was valid, they were entitled to all sums over and above $800 per year produced by the trust fund. They also argued, as do the heirs in the instant case, that the fact that the will said that the trust was established in memory of the brother of the testatrix, that such language indicated that the testatrix’ purpose was not charitable, but was intended as a memorial to her brother. In disposing of the last contention, the court said:

. . This makes no difference. The true test of a public charitable trust is the object sought to be attained, and not the motive of the donor. Restatement of Law of Trusts, § 368d, p. 1142 ...” (60 N.E.2d at 285)

The court framed the issue to be decided as follows:

“. . . Did she [testatrix] intend that over half of her property, or the income therefrom, should go to the remote heirs who are plaintiffs in this action, or did she intend that the entire residue of her estate should be devoted to the education of children of employees of the Pennsylvania Railroad Company . it seems to us we cannot read into the will any intent upon her part to have the larger part of her estate pass to appellants. She says specifically that ‘the remainder . . . shall be used to promote college or university education of children of employees of the Pennsylvania Railroad Company * * This means all of the remainder. ... At no place in her will does she mention the plaintiffs in this action. . . . nothing was given to them by the terms of this will. Had she wanted them to have a part of her estate she could easily have so provided. So it is our conclusion that she had no intent to leave any part of her estate to appellants. Any other conclusion means that she died intestate as to part of her estate, and a conclusion resulting in partial intestacy is to be avoided if possible. [Citations omitted]” (60 N.E.2d at 286)

Such we believe is the case here. The Hinshaw will indicates that it was their intention to leave all of the residuary estate in trust for the benefit of the named charitable institutions. No restrictions as to the use which these charities are to make of such is prescribed. They did not mention any of the plaintiffs in their will. Obviously, they could have done so had they wished. The will did specify that $100 per year was to be paid to each charity and that the corpus could be invaded if necessary to reach that annual payment. What disposition then should be made of the surplus, if the corpus produces in excess of $200 per year, after cost of administration? This question, too, must be resolved in a manner most likely to coincide with the intentions of the testator. What would the Hinshaws have provided had they anticipated that the residue of their property would produce more than the amount specified to be paid to the charities? In his treatise, Professor Scott states:

“In framing a scheme as to the disposition of the surplus the court will attempt to carry out the general purpose of the testator. . . .” Scott on Trusts (3d ed. 1967), Vol. IV, § 400.

He goes on to say that sometimes the courts can best effectuate the intention of the testator by providing that larger sums be paid to the same number of beneficiaries, and at other times, by providing that a greater number of recipients be included.

The Connecticut Court has held that once an underlying charitable intent has been found, it is the duty of the court to effectuate that intent, saying:

“. . . [I]t has been established that, a trustee, in fulfilment of its duty to give effect to the testator’s intentions as apparent from the will, may use surplus income to bestow upon the charities named additional benefits in proportion to their original shares. Hoyt v. Bliss, 93 Conn. 344, 353, 105 A. 699 . . .” Hartford National B. & T. Co. v. Billings P. Learned Mission, 22 Conn.Sup. 409, 174 A.2d 49, 52 (1961).

This concept is not new in the law. In Attorney General v. Minshull, 4 Ves.Jun. 12 (1798), a testator left his property in trust, specifying that a specific amount of income (40 shillings a year) should be used to buy coats for poor men and women in a particular parish, and that any excess should be used to place poor children as apprentices at a cost not in excess of £10 per child. When it developed that poor children could not be placed for that amount, a surplus developed. When the heirs of the testator claimed the surplus, the court rejected their claim and held that the testator intended the whole income devoted to charity. In that case, the court directed the trustee to expend the surplus on other charities.

We need not go so far in this ease. The object of the Hinshaws’ bounty are clear. They are the two charities named in their will. The bequest was not limited to a specific purpose. We think their intent was that any amount in excess of that specified in the will which the trust produced should be divided equally between those two named charities. See Trustees Stewart Common School Fund v. Lewis, 234 Ky. 286, 28 S.W.2d 27 (1930).

To adopt the position urged by the Hin-shaw heirs would be to hold that the Hin-shaws died intestate as to the major portion of their property. This would be to disregard long-established rules of law which compel the opposite holding. The judgment appealed from is affirmed in holding that a valid trust was created by the Hinshaw will and that the beneficiaries thereunder were the Crippled Children’s Foundation and the Baptist Children’s Home at Troy.

Although the Baptist Children’s Home did not participate in the appeal of this case, its interest is identical to that of the Crippled Children’s Foundation, which asserted the position of both charities. The judgment of the trial court directing that any surplus or excess trust property belonging to the Hinshaw heirs affects both charities. It is that holding which we reverse. Isay v. Cameron, 285 Ala. 164, 229 So.2d 916 (1969); City of Tuscaloosa v. Fair, 232 Ala. 129, 167 So. 276 (1936).

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

BLOODWORTH, MADDOX, JONES, ALMON, EMBRY and BEATTY, JJ., concur.

TORBERT, C. J., and FAULKNER, J., dissent.

FAULKNER, Justice

(dissenting).

I dissent.

Although called a joint will by the testators, the will in this case is not a joint will. A joint will is a testamentary instrument executed by two or more persons pursuant to a common intention to dispose of their several interests in property owned by them in common, or of their separate property treated as a common fund to a third person. Ginn v. Edmundson, 173 N.C. 85, 91 S.E. 696 (1917). I do not find any evidence that Mrs. Hinshaw owned any property to create a common fund. Therefore, in reality, Mr. Hinshaw devised his separate estate to Mrs. Hinshaw for life, with a limited power of appointment. From the residue he created a testamentary trust for the benefit of Baptist Children’s Home, and Crippled Children’s Clinic limited to $100 per year for each beneficiary. This, he said, could be paid from income or corpus.

What happens to the property over and above the amount necessary to pay the charities $100 per year? The authorities, too numerous to cite, hold that property not disposed of by will passes under the statute of descent and distribution. In my opinion, the excess of the charitable bequests descend to Mr. Hinshaw’s heirs.

It is obvious that Mr. Hinshaw only gave a token bequest to the charities. It would have been a simple matter to dispose of the entire residue to-them, had he desired to do so. Yet, he capped the bequest at $100 per year.

Finally, Mrs. Hinshaw’s appointment of a successor trustee is beyond her authority, because she had only a limited power of appointment. However, the trust will not fail because the court can appoint a successor. If I were a title examiner, I would refuse to pass on any conveyance or real estate investment made by the trustee appointed by Mrs. Hinshaw. That trustee does not have legal authority to sell or convey property.

In my opinion the trial court correctly construed the will.

TORBERT, C. J., concurs.


author: TORBERT, Chief Justice.

text:
    James R. DONNELLY et al. v. Hugh K. DOAK et al.
    SC 2251.
    Supreme Court of Alabama.
    May 20, 1977.
    Aubrey 0. Lammons, Huntsville, for appellants.
    Joe M. Berry and James T. Baxter, of Cloud, Berry, Abies, Blanton & Tatum, David Craddock, Huntsville, for appellees.
   TORBERT, Chief Justice.

The plaintiffs-appellants are all homeowners in the Sunset Valley Subdivision, Third Addition, which is located in the City of Huntsville. The defendants-appellees are the twelve members of the Huntsville .Planning Commission, the City of Huntsville, and E. M. Windsor, the developer of the Buck’s Canyon Subdivision. The appellants filed a complaint in Madison County Circuit Court, seeking a declaratory judgment as to the legality of the Huntsville Planning Commission’s approval of the Buck’s Canyon Subdivision plat. Appellants sought a ruling by the trial court that the Commission’s approval of the Buck’s Canyon Subdivision plat was void on the following two grounds: (1) the plat was in violation of Huntsville’s Subdivision Regulations; (2) final approval by the Commission was improper in that one of the Commission members who voted in favor of approval was disqualified because of a conflict of interest.

The ease was heard ore tenus and on November 2, 1976 the trial court ruled that the appellants had failed to reasonably satisfy it that the Buck’s Canyon Subdivision plat contained such irregularities as to make it void as a matter of law. The court also found that the appellants failed to reasonably satisfy it that the action of the Commission, in granting final plat approval for the Buck’s Canyon Subdivision, should be declared void. Hence this appeal.

In April 1976 appellee Windsor submitted to the Huntsville Planning Commission, for layout approval, a subdivision plat of what is now' called Buck’s Canyon Subdivision. The land composing this subdivision abuts the Sunset Valley Subdivision, Third Addition, on the eastern boundary. To gain access to the Buck’s Canyon property the plat depicted the extension of an existing road, Valley Lane, along the rear lot lines of the appellants’ three lots. It was this design feature which precipitated the controversy which has now made its way to this court.

Between April and August of 1976 the Huntsville Planning Commission labored with the controversy that surrounded their consideration of Buck’s Canyon Subdivision. The Commission meetings were open, and well attended by all parties concerned. The appellants retained counsel during this period of time who acted as their representative at these meetings. There is no contention that the Commission proceedings were not well announced and from the record it appears that both sides of the issue were given ample opportunity to make their feelings known to the Commission.

On August 24, 1976 the Commission met, with eleven of its twelve members present, and by a vote of six to four granted final approval for the Buck’s Canyon Subdivision Plat. The chairman abstained in that he voted only in the event of a tie vote.

At trial, the appellants attacked the legality of the design of the plat as finally approved. It was their contention before the trial court and it is their contention here that the extension of Valley Lane created “double fronting” on their property, which was in violation of the Huntsville Subdivision Regulations. “Double fronting” occurs when there is a public right of way in the front of a lot as well as a right of way on the side or in the rear of the lot.

The basis for the appellants’ contention, regarding the alleged conflict of interest, is that one of the Planning Commission members, Tom Johnson, is an employee of the engineering company which prepared the Buck’s Canyon Subdivision, Jones & Sons, Inc. At trial Mr. Johnson testified that he was a salaried employee of Jones & Sons, Inc., and that his vote for approval of the Buck’s Canyon Subdivision plat was in no way influenced by his employment. Appellants contend that Mr. Johnson was disqualified from voting on this particular plat under Robert’s Rules of Order, which had been adopted by the Commission as its guide for parliamentary procedure. With Mr. Johnson’s vote for approval set aside the appellants argue that the vote on the plat would change to five in favor, four opposed, and two abstentions. It is the appellants’ argument that this vote does not comply with the following requirement which governs the adoption of subdivision plats by the Huntsville Planning Commission:

“The approval of any subdivision, and the passage of any questions before the Commission, other than the adoption or amendment of any plan, shall be carried by the majority of those members present.” [Emphasis added.]
Act No. 726, § 2, Reg.Sess. 1975

Appellants conclude that there were 11 members present and after the disqualification only 5 voted in favor of approval, which is not a majority, and hence the plat was disapproved.

As to the alleged illegality of the design of the Buck’s Canyon Plat, the trial court found that section 7.1 of the Huntsville Subdivision Regulations, allows the Commission to grant variances to the regulations under certain circumstances and that the appellants failed to carry their burden of proving that the approval of this plat was in derogation of section 7.1..

Section 7.1 provides as follows:

“Whereas the Planning Commission finds that extraordinary hardships may result from strict compliance with these regulations, due to unusual topographic or other conditions beyond the control of the subdivider, it may vary thé regulations so that substantial justice may be done and the public interest secured; provided that such variation will not have the effect of nullifying the intent or purpose of the Subdivision Regulations, Zoning Ordinance, Major Street Plan, or other elements of the Huntsville Master Plan.”

Concerning the appellants’ argument that the vote on the final plat was improper, the trial court held that the adoption of Robert’s Rules of Order by reference in the by-laws of the Commission, could only mean that Robert's Rules were directory not mandatory.

The trial court went further and stated that if for the sake of argument Robert’s Rules of Order were considered mandatory and that Mr. Johnson’s vote were not counted the resulting vote — 5 for, 4 against, 2 abstain — would still constitute approval of the plat under the requirements of Act 726, supra. The trial court interpreted Act 726 to mean that a plat is approved when a majority of the members present and “qualified to vote” vote for approval.

When evidence is heard ore tenus, as here, this court will not disturb the trial court’s findings of fact unless they are clearly erroneous or manifestly unjust. Morvay v. Drake, 295 Ala. 174, 325 So.2d 165 (1976); Trabits v. Snow, 294 Ala. 313, 316 So.2d 336 (1975).

The trial court’s finding that the appellants had not carried their burden of proving that the Buck’s Canyon Plat could not be approved under section 7.1 of the Subdivision Regulations, is supported by ample evidence in the record.

The trial court’s interpretation of the provisions of Act No. 726 is a question of law and as such, on appeal is not entitled to any presumption of correctness. In this instance we are in agreement with the trial court’s application of the law to the facts in this case. To rule as the appellants would wish, that in order to approve a plat Act 726 requires that a majority of those physically present at the Commission meeting vote for plat approval, would result in some absurd results. Although it would have been helpful if the Legislature had been more specific in regards to this question, it is clear to this court that the trial court properly found that the phrase “members present” implies “members present and qualified to vote.” Because of this conclusion it is not necessary for us to consider the question of what effect Robert’s Rules of Order had on the Commission’s proceedings.

AFFIRMED.

BLOODWORTH, JONES, ALMON and EMBRY, JJ., concur.


author: BLOODWORTH, Justice.

text:
    John David HODGES v. GENERAL SHALE PRODUCTS CORPORATION, a corporation.
    SC 2269.
    Supreme Court of Alabama.
    May 20, 1977.

      Lloyd W. Gathings, Emond & Vines, Birmingham, for appellant.
    Edgar M. Elliott, Rives, Peterson, Pettus, Conway, Elliott & Small, Birmingham, for appellee.
   BLOODWORTH, Justice.

Plaintiff, John David Hodges sued General Shale Products Corporation, L&N Railroad Company and others in Jefferson Circuit Court for personal injuries. L&N entered a general appearance. General Shale objected to the venue and the cause was abated as to it. We reverse and remand.

General Shale’s objection to venue was in the form of a motion to transfer the action to Madison Circuit Court. In its motion, General Shale alleged that it is a Delaware corporation which has qualified to do business in Alabama; that, on the date of the filing of this action, it was not doing business in Jefferson County; and, that, under § 232, Constitution of 1901, it could not be sued in Jefferson County. General Shale later moved that this motion be treated as a plea in abatement. Its motion was granted, and subsequently the action was abated as to General Shale. Final judgment was entered pursuant to Rule 54(b), Alabama Rules of Civil Procedure, and plaintiff has appealed.

Plaintiff Hodges contends that Rule 82(d), ARCP, requires that, when an action is filed laying venue in the wrong county, the trial court shall transfer the action to the court in which it might have been properly filed, rather than to dismiss it.

General Shale contends that the trial court had three alternatives: (1) transfer of the case against the defendant as to whom there is improper venue; (2) transfer of the case against all defendants; or (3) dismissal of the case against the defendant as to whom there is no venue. The first, it argues, is untenable because venue cannot be changed as to one defendant and not as to all and because such a transfer would impinge upon the defendants’ rights to cross-actions against each other. The second alternative, it argues, would violate the right of L&N not to contest the venue originally chosen. It argues that dismissal is the only reasonable action where there is proper venue as to one defendant but not as to a co-defendant who is entitled to the protection of § 232, supra.

General Shale cites the last sentence of Rule 19(a), ARCP, in support of dismissal. It argues that Rule 82(d) is not applicable to the present case because it contemplates only one defendant. We do not agree.

We hold that the trial court erred in dismissing General Shale from the action. Rule 82(d), ARCP, provides,

“When an action is filed laying venue in the wrong county, the court, on timely motion, shall transfer the action to the court in which the action might have been properly filed and the case shall proceed as though originally filed therein.

There may be situations in which the interaction of Rule 19, ARCP, and § 232, Constitution of 1901, would prevent the application of Rule 82(d) and make dismissal the only alternative, but such circumstances do not appear in the record before us. Dismissal is a severe penalty and is warranted only in the most unusual circumstances. Cf. 1 Moore’s Federal Practice ¶ 0.146[5],

The policy of our Rules of Civil Procedure is “to secure the just, speedy and inexpensive determination of every action.” Rule 1, ARCP. In the present case, this policy is best served by adhering to the provisions of Rule 82(d), supra. Because the statute of limitations on actions for personal injury has run, dismissal of General Shale works an injustice by preventing disposition of plaintiff’s, claim on its merits against this defendant. Transfer would enable the action to go forward in the proper venue.

The last sentence of Rule 19(a), ARCP, applies where there are absent persons who must be joined as parties if feasible and is not applicable to the present case. Wright & Miller, Federal Practice and Procedure: Civil § 1610.

Where transfer is the proper remedy, there are, as General Shale has pointed out, two possibilities—transfer of the entire action and transfer of the defendant as to whom venue is improper. Considering the interest in judicial economy, transfer of the entire action is clearly the preferred alternative. There are, however, situations in which severance and transfer may be necessary. See Committee Comments, Rule 82, ARCP.

General Shale speaks of dragging L&N from Jefferson County, where it is content to remain, to Madison County and of depriving it of its rights not to contest venue. If L&N objects to a transfer of the entire case to Madison, it will have an opportunity to interpose its objections before the trial court, and the trial court will have an opportunity to determine whether those objections justify severance and transfer of General Shale alone.

The rigid rule of Van Dyke v. Battle, 1 Stewart 218 (Ala.1827), that venue in a civil action cannot be changed as to one defendant and not as to all is contrary to the policy of the Alabama Rules of Civil Procedure and is overruled. Its application would, in some cases, require dismissal even when there is no valid reason against severance and transfer. Rule 19, ARCP, now governs as to when different persons shall be joined as parties in a single action. It makes little sense to prohibit severance and transfer in cases in which, as in the present case, separate actions could have been brought originally.

We agree with General Shale that severance and transfer could make it inconvenient for defendants to maintain cross-actions. That inconvenience is one reason why transfer of the entire action may be the most desirable remedy to a venue problem, but convenience and judicial economy do not outweigh the overwhelming public interest in having cases disposed of on their merits. Severance and transfer may not be the most desirable remedy, but it may not be the least desirable either — i. e., dismissal.

This cause is reversed and remanded to the trial court for the entry of a judgment not inconsistent with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

JONES, ALMON, EMBRY and BEAT-TY, JJ., concur.


text:
    Ex parte Judson C. LOCKE, Jr. In re McKINNEY, et al. v. LOCKE et al.
    SC 2289.
    Supreme Court of Alabama.
    May 20, 1977.
    W. Scears Barnes, Jr., Radney, Radney & Barnes, Alexander City, for petitioner.

      W. McLean Pitts, Cartledge W. Blackwell, Jr., J. Garrison Thompson, Selma, for Edgar P. Russell, Jr., J. C. Norton and W. D. Nichols.
    J. Knox Argo, Montgomery, for William F. Thetford.
   BLOODWORTH, Justice.

In this case, a petition for a writ of mandamus or prohibition was filed by Judson C. Locke, Jr., Commissioner of Corrections for the State of Alabama. Respondents are Judge William F. Thetford of the Montgomery Circuit Court, Judges Edgar P. Russell, Jr., and J. C. Norton of the Dallas Circuit Court, and W. D. Nichols, Sheriff of Dallas County. Writ awarded conditionally.

On December 20, 1976, the members of the Montgomery County Commission filed suit in Montgomery Circuit Court seeking an order requiring Commissioner Locke to transfer state prisoners in the Montgomery County Jail to other jail facilities. They alleged that the Montgomery County Jail was overcrowded, unsanitary, unsecure, and unsafe and that there was a danger of lawless violence to the prisoners. They alleged that Commissioner Locke had the duty to make such transfers under Tit. 45, §§ 167-169, Code of Alabama 1940 (Recompiled 1958). In the alternative, they requested the court to direct removal of prisoners from the Montgomery County Jail to the nearest sufficient jail in any other county, under Tit. 45, § 133.

On December 29, Commissioner Locke appeared before Judge Thetford with documents relating to statewide jail populations. Evidence was taken concerning the conditions at the Montgomery County Jail.

On December 30, Judge Thetford issued an order based upon his finding that the Montgomery County Jail was overcrowded and insufficient. First, he ordered Commissioner Locke to remove 16 maximum security state prisoners from the Montgomery County Jail, eight to be designated by the Montgomery County Sheriff and eight to be designated by Commissioner Locke. Judge Thetford ordered that the selection of prisoners should comply with any previously imposed federal or state judicial guidelines and that the removal should be accomplished within five days.

Second, Judge Thetford ordered that 20 state prisoners be transferred from the Montgomery County Jail to the Dallas County Jail, which the court found to be the nearest sufficient jail, and directed the Dallas County Sheriff to take custody of the prisoners. The court found that the state was responsible for the cost of housing and medical care of state prisoners and ordered Commissioner Locke to “take every administrative action . . . within his authority to insure that the cost of housing (including medical expenses) of state prisoners is paid.”

On the same day, Judge Russell issued a preliminary order directing the Sheriff of Dallas County to decline to receive any prisoners from any county other than Dallas or from any city other than Selma.

On January 3, 1977, after conducting an evidentiary hearing, Judge Russell issued an order directing that his order of December 30 remain in effect until he rendered further orders.

Following the conflicting orders of the Montgomery and Dallas Circuit Courts, Commissioner Locke petitioned the United States District Court for the Middle District of Alabama for instructions concerning the conflicting orders and the federal court order governing the state prison system. The federal court declined to give any instructions.

On January 4, 1977, Commissioner Locke petitioned this Court for a writ of mandamus or prohibition. The petition was amended on January 5.

On January 6, this Court issued an order setting a hearing for January 11 and staying Judge Thetford’s order. On January 13, this Court issued an order which, inter alia, denied the Dallas County parties’ motion to dismiss the petition.

The case was submitted after oral argument by the parties on April 14, 1977.

Commissioner Locke contends, first, that Judge Thetford had the authority, under Tit. 45, §§ 133 and 167, to order the transfer of prisoners from the Montgomery County Jail to the Dallas County Jail. The Dallas County respondents contend that § 133 is not applicable to the kind of problem faced by the Montgomery County Jail and that, in any event, Judge Thetford failed to follow the procedures outlined under § 133.

Second, Commissioner Locke contends that Judge Thetford’s order regarding the transfer of 16 maximum security state prisoners should have designated the facility to which they were to be transferred. Judge Thetford denies that his failure to make such a designation was an abuse of discretion, but does not oppose Commissioner Locke’s request that the order be amended to designate the facility.

Third, Commissioner Locke contends that Judge Russell had no authority to order the Sheriff of Dallas County, in effect, not to comply with Judge Thetford’s order. He argues that, when a court of competent jurisdiction has assumed jurisdiction in a case, its authority continues, subject only to appellate review, until the matter before it is finally disposed of and no court of concurrent authority may interfere with its action. The Dallas County respondents argue that Judge Thetford erred in ordering a transfer to the Dallas County Jail because he did not have before him accurate information concerning the capacity of the Dallas County Jail and thus erred in his finding that it was the nearest sufficient jail. They further argue that due process was denied because the Sheriff of Dallas County was not made a party to and was not given notice of the action before Judge Thetford. Judge Thetford replies that § 133 does not contemplate any prior notice to the custodian of the receiving jail and further that the custodian of a jail does not have a significant, legally protectable interest in the number of inmates in the facility.

Finally, Commissioner Locke contends that Judge Thetford erred in directing him to take the administrative steps necessary to insure payment for the costs of caring for state prisoners because the Commissioner is not authorized to make payments to counties for expenses incurred in housing state prisoners. He argues that payment of those expenses is governed by Tit. 45, §§ 144, 148.

The only issues properly before this Court on Commissioner Locke’s petition are those which relate to the conflicting orders of Judges Thetford and Russell. Mandamus and prohibition are both extraordinary legal remedies and will issue only when, inter alia, there is no other adequate remedy for the enforcement of a legal right or for the prevention of a usurpation or abuse of power. Alabama State Bar v. Simpson, 289 Ala. 735, 272 So.2d 245 (1972); All American Life and Casualty Co. v. Moore, 286 Ala. 492, 242 So.2d 661 (1970). Some of the issues raised by Commissioner Locke are not properly before this Court on his petition for writ of mandamus or prohibition, because they could have been presented by an appeal of Judge Thetford’s order. Those issues pertain to Commissioner Locke’s contention that Judge Thetford should have designated the facility to which the 16 maximum security state prisoners were to be transferred, his contention that Judge Thetford erred in directing him to take the administrative steps necessary to insure payment for the costs of caring for state prisoners, and his contention that Judge Thetford’s order should be amended.

Mandamus is the appropriate remedy in this case, because Commissioner Locke is seeking to enforce a legal right, viz., the right to have a void order set aside. All American Life and Casualty Co. v. Moore, supra.

We hold that Judge Thetford acted without jurisdiction in issuing an order concerning the Dallas County Jail because the Sheriff of Dallas County, the lawful custodian of the Dallas County Jail, was not made a party to the action. Tit. 45, § 115, Code of Alabama 1940 (Recompiled 1958). Any order that prisoners be transferred to the Dallas County Jail is, by operation of law, an order directed to the Sheriff of Dallas County, because he is the person who must take custody of the prisoners. Judge Thetford’s order was issued even though the Sheriff of Dallas County had not been given notice of the proceeding or an opportunity to be heard. Consequently, Judge Thetford did not have jurisdiction over the person of the Sheriff of Dallas County and had no authority to issue an order which would require him to take any action.

Our holding here does not take away the authority of circuit and district judges under Tit. 45, § 133, but merely recognizes that the exercise of the power granted there is subject to constitutional requirements of due process.

From our conclusion that Judge Thet-ford’s order is coram non judice and void for want of due process, it must necessarily follow that the legal efficacy of Judge Russell’s orders is, for the purposes of this present case, moot, because they were made in response to Judge Thetford’s order.

Therefore, let the writ issue unless Judge Thetford sets aside his order within 30 days from the date of this decision.

WRIT AWARDED CONDITIONALLY.

TORBERT, C. J., and JONES, ALMON and EMBRY, JJ., concur.


text:
    John B. BUTTS v. Sanford D. WEISS, etc.
    SC 2348.
    Supreme Court of Alabama.
    May 20, 1977.
    John W. Kelly III, Jackson & Sikes, Selma, for appellant.
    Charles A. Stakely, Jr. and Thomas H. Keene, Montgomery, for appellee.
   BLOODWORTH, Justice.

This appeal raises the question as to whether, in an action for slander based on the assertion that plaintiff was not a duly qualified and licensed attorney, plaintiff must specifically allege that he is “actively engaged in the practice of law” in order to withstand a Rule 12(b)(6) ARCP motion.

We answer in the negative and hold that, in this case, the allegations of the complaint are sufficient to show plaintiff’s profession without the need for the specific allegation. We reverse and remand.

Plaintiff’s complaint alleged, inter alia: that he is an attorney at law, having passed the State Bar Exam and having been admitted to practice law by the Alabama Supreme Court on September 23, 1973 (he attached his license to the complaint); that the defendant slandered him by saying of him in the presence of divers persons that “the Plaintiff was not a duly qualified attorney and that the Plaintiff was not licensed to practice law within the State of Alabama”; that he has suffered mental and emotional distress and embarrassment: that “his reputation has been injured”; and, that he has been “injured in the practice of his profession.”

Defendant’s motion to dismiss simply states that the complaint “fails to state a claim upon which relief can be based.”

Neither side asked for oral argument on the motion. It was submitted to and granted by the trial judge without any reason being given.

On this appeal, plaintiff says that the motion was erroneously granted. He contends that a complaint “should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief,” citing Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80, (1957). He further contends that the words spoken of him are actionable per se.

On the other hand, defendant contends that the motion to dismiss was properly granted since the complaint fails to allege that the plaintiff is “actively engaged in the practice of law.” He argues that such a specific allegation is necessary. He cites Prosser, Law of Torts § 112 (4th ed. 1971), and Sleight v. Woods, 145 Misc. 824, 260 N.Y.S. 825 (1932), and Shakun v. Sadinoff, 272 App.Div. 721, 74 N.Y.S.2d 556 (1947), as his authorities for this proposition.

However, these authorities simply hold that no proof of special damages is necessary in order to recover damages for slander affecting a person’s business or profession. These authorities do say that it must appear from the complaint that the plaintiff was then, or about to be, engaged in the business or profession. Authorities, supra.

We think that the plaintiff’s complaint contained, in substance, sufficient allegations at least to the point of withstanding a Rule 12(b)(6) ARCP motion to dismiss. Conley v. Gibson, supra.

We agree with the plaintiff that, in order to hold otherwise, we would have to treat the 12(b)(6) motion as a general demurrer and would have to construe the complaint most strongly against the pleader, a stance this Court abandoned by adopting the Alabama Rules of Civil Procedure January 3, 1973.

The granting of the 12(b)(6) motion to dismiss was premature. We reverse and remand.

REVERSED AND REMANDED.

TORBERT, C. J., and JONES, ALMON and EMBRY, JJ., concur.


author: SIMMONS, Retired Circuit Judge.

text:
    Manon DeSHAZO, III, et al. v. Helen DeShazo MILLER et al.
    SC 1525.
    Supreme Court of Alabama.
    May 27, 1977.

      S. Eason Balch, Jr., Balch, Bingham, Baker, Hawthorne, Williams & Ward, Birmingham, William E. Hereford, Jr., Gaines, Hereford & Cleckler, Pell City, for appellants.
    J. Zack Higgs, Jr., Hornsby, Blankenship, Higgs, Smith & Robinson, Huntsville, for appellees.
   SIMMONS, Retired Circuit Judge.

The plaintiffs below, who are the appel-lees here, filed two suits. One of the suits sought to have a sale and division of the lands in the estate of Clara George and the other sought to have a 45-acre tract of land which had been deeded to Manon DeShazo, Jr., declared to be a part of the estate. These cases were combined for trial and were heard ore tenas. This appeal only concerns the trial court’s ruling that the deed which conveyed the 45 acres from Clara George to Manon DeShazo, Jr., should be set aside and the 45 acres considered to be part of the Clara George Estate.

The trial court’s final decree provided in pertinent part as follows:

“The main issue in this case is the validity and effect of a deed made by one Clara George to her nephew, Manon DeShazo, Jr. on April 19, 1969. This deed is plaintiffs’ or complainants’ exhibit number 1. At the time this deed was made the said Clara George was some 77 or 78 years old and had been a patient in a nursing home for some six or seven years. Furthermore she was in the process of moving by necessity to a more expensive nursing home. She was also the owner of a valuable 45 acre tract of land which the said Manon DeShazo, Jr., as her agent, was about to lease to the A-B Realty Investment Company for a rather high rent. The rental income was to be so much that it would eliminate her pension paid by the Veterans Administration. It is agreed that Manon DeShazo, Jr., paid nothing for the land.
“This deed is a puzzle and both parties to it are now dead. But it seems inconceivable that an intelligent woman in her right mind would give away such valuable property at a time when she was confronted with the problems facing her.
“Without commenting on the Moral principles as far as the government is concerned, the Court intends no reflection on Manon DeShazo, Jr., as far as his dealings with his aunt are concerned, but the Court does find that the said deed was made under a trust arrangement to avoid the loss of Mrs. George’s Veterans Administration pension. The entire arrangement is such that the Court can reach no other conclusion other than that Manon DeShazo, Jr. exerted undue influence upon his aunt Clara George, although his motives toward her, though mis-guided, may have been honorable.
“Had Mrs. George wanted to leave such valuable property to this one nephew, to the exclusion of the others, it could have been done by will. But under all of the evidence in this case the Court finds and holds that Manon DeShazo, Jr., took the property described in complainants’ exhibit number 1 as trustee, and that said property is part of the Clara George estate and as such is subject to this proceeding.”

After this ruling the defendants below, appellants here, moved for a judgment n. o. v. or in the alternative for a new trial. The denial of these motions is the basis upon which the appellants bring this appeal.

The appellants in this case are the widow and two children of Manon DeShazo, Jr. The appellees constitute all the heirs of Clara George, except for the two children of Manon DeShazo, Jr.

During the time relevant to this suit, Clara George was a widow with no living children or grandchildren. Her closest living relatives were the children of her brother, Manon DeShazo, and their children. It appears that Clara George had great affection for these nieces and nephews as well as for their children. As Clara George progressed in age and began to need the assistance of another in the management of her affairs she turned to her nephew, Manon DeShazo, Jr., who accepted the responsibility of seeing after her interests even though he resided in Tennessee and she in St. Clair County and Jefferson County in Alabama. Manon DeShazo, Jr., had a general power of attorney for Clara George, was listed jointly on her bank accounts, paid her bills, and in general managed her affairs.

On April 19, 1969, Clara George executed a deed which conveyed the 45 acres that is in dispute here to Manon DeShazo, Jr. On the day the deed was executed, Manon De-Shazo, Jr., drove Clara George to the office of her long-time attorney and then left. Mrs. George conferred with her attorney, after which the lawyer directed his secretary to prepare a deed which was then signed by Mrs. George and witnessed. Shortly thereafter Manon DeShazo, Jr., arrived and the two left together. The deed was recorded on the same day. Apparently there was no monetary consideration paid by Manon DeShazo, Jr., for this property, which at that time was valued at $70,000.

Clara George was 78 years old when she conveyed this property and resided in a nursing home. Although she had suffered a stroke in 1963, the evidence tends to show that at the time of the conveyance she was mentally competent and completely aware of the nature of her act. Also, it appears that she was in good physical health for someone her age and that the reason she resided in a nursing home was due to convenience rather than necessity.

During this period of time, Clara George was receiving a monthly pension from the Veterans Administration in the amount of $108. In order to be entitled to this widow’s pension Mrs. George could not have an annual income in excess of $2,000.

On May 1, 1969, Manon DeShazo, Jr. entered into a long-term lease agreement with A-B Realty Investment Co. whereby the 45 acres here involved were leased for use as a mobile home park. The lease agreement initially called for a monthly rental of $250 with the rental to increase during the term of the lease to a minimum of $500 a month.

Manon DeShazo, Jr., died of a heart attack in April of 1970. Article II of his last will and testament, which was prepared in July 1969, provided for a $200 monthly payment to Clara George for the rest of her life; the remainder of-his estate was left to his wife and children.

Clara George died on July 1, 1971, and in her will she devised and bequeathed her estate to her five nieces and nephews or if they were deceased, to their children. The will named Manon DeShazo’s widow as the executrix and the son of Manon DeShazo, Jr., as alternate executor. This will was prepared in December of 1970.

During the trial of this case, the trial court was continually called upon by the defendants to rule on the competency of some of the plaintiffs to testify to certain facts under the Alabama Deadman’s Statute, Title 7, § 433, Alabama Code of 1940 (Recomp.1958).

This statute provides in pertinent part as follows:

“[N]o person having a pecuniary interest in the result of this suit . . shall be allowed to testify against the party to whom his interest is opposed, as to any transaction with, or statement by, the deceased person whose estate is interested in the result of the suit . .

The following four questions paraphrase this statute and an affirmative reply to each of the questions means that the Dead-man’s Statute applies and the witness is not competent to testify: (1) Will the testimony concern a statement by or a transaction with a deceased person? (2) Will the estate of this deceased person be affected by the outcome of the suit? (3) Does the witness have a pecuniary interest in the result of the suit? (4) Is the interest of the witness opposed to the interest of the party against whom he is called to testify? See Taylor v. First Nat’l Bank of Tuskaloosa, 279 Ala. 624, 189 So.2d 141 (1966).

The trial court had difficulty in dealing with objections under the Deadman’s Statute, particularly in the early stages of the trial. This difficulty is traced to the fact that there were two estates interested in the result of this case. The Clara George Estate would be increased if the deed were set aside, while the Manon DeShazo, Jr. Estate would be diminished if this should occur. Further, because of the nature of the plaintiffs’ theories of recovery there was a tendency for the parties when they took the stand to testify to “transactions or conversations” with either Clara George or Manon DeShazo, Jr. There is no question that the parties to this suit had a pecuniary interest in the outcome.

The trial court initially ruled that the Deadman’s Statute prohibited the parties from testifying to what either Manon DeShazo, Jr., or Clara George said to them, but allowed the parties to testify as to what they said in conversation with Manon De-Shazo, Jr., or Clara George. This interpretation was in contravention with this court’s ruling in Buye v. Alabama Marble Quarries, 199 Ala. 589, 75 So. 9 (1917); which the trial court later recognized and attempted to correct by excluding the testimony that had been elicited. The trial court’s ruling on this exclusion was stated as follows:

Court: “That’s true. I will have to exclude from consideration any statements that have been made to Manon DeShazo [Jr.] by any of the witnesses. I believe we had some yesterday.”

The next witness for the plaintiffs after this ruling was Dr. John DeShazo, who was a party plaintiff. He was a grandnephew of Clara George in that his deceased father, Ira W. DeShazo, was one of her nephews. Consequently, John DeShazo was a beneficiary under Clara George’s will. He was questioned by counsel for plaintiffs as to a conversation he had with Clara George in 1968. Over the specific objection of the defendants based on the Deadman’s Statute, the trial court allowed John DeShazo to testify as follows: “Aunt Clara was very disturbed about something that Uncle Manon was doing.” The trial court erred in overruling the defendants’ objection to this testimony which was rendered incompetent by the Dead-man’s Statute, as outlined above.

This particular testimony of Dr. John DeShazo was brought out on re-direct examination and the appellees contend that it was proper because during cross-examination Dr. DeShazo had been asked by appellants about a conversation he had had with Clara George in 1969. Appellees argue that this constituted a waiver by appellants to any later objection to testimony by Dr. DeShazo concerning conversations with Clara George. This contention is not well taken, in that it is settled law that a waiver does not occur if during cross-examination a witness is asked about matters brought out on direct by the other side and inadmissible under the Deadman’s Statute. Walling v. Couch, 292 Ala. 33, 288 So.2d 435 (1973); Milton Realty Co. v. Wilson, 214 Ala. 143, 107 So. 92 (1926); Scarbrough v. Blackman, 108 Ala. 656, 18 So. 735 (1895).

The trial court also erred by allowing testimony of several of the party plaintiffs, all beneficiaries under Clara George’s will, as to an “understanding” or “agreement” reached during 1968 or 1969 within the “family” regarding the maintenance of Clara George and the ultimate disposition of her property. The trial court stated its interpretation of this understanding in the following manner:

“Well, as I understand the testimony here of Mr. DeShazo and Mrs. Hawkins, the understanding — their understanding of the agreement reached some time in 1969 was that the property would be used for the support of Mrs. George as long as she lived. And then each one of them testified as to their understanding of it; and that after her death it ’would be divided among the five. That’s what I understood the testimony of these two witnesses to be with reference to the agreement as to the support of Mrs. George and as to the eventual division of her property.”

The error here is also based on the Dead-man’s Statute. The evidence was undisputed that Manon DeShazo, Jr., handled Clara George’s business affairs and was the person who managed her finances and obviously was the one who was most involved in planning for her future needs. It is also undisputed that Manon DeShazo, Jr., for the most part was the only one of the DeShazo family to be involved in making the arrangements for the lease agreement for the mobile home park. Of course at the time the lease was entered into he was the title owner of the property, but prior to the passage of title from Clara George to him, Manon DeShazo, Jr., had made preliminary arrangements in securing the lease. Thus the testimony of these plaintiffs which the trial court allowed, over the appropriate objection by counsel for defendants, regarding an “understanding” on the matter of Clara George’s future income and property disposition would have necessarily had to be based upon either conversations with or transactions with Manon DeShazo, Jr. As such, these witnesses were not competent to testify on this subject under the Deadman’s Statute.

The trial court committed reversible error in overruling defendants’ objections under the Deadman’s Statute to the testimony of these witnesses and Dr. John DeShazo. Accordingly, this case is due to be reversed and remanded to the trial court for a new trial.

REVERSED AND REMANDED.

BLOODWORTH, JONES, ALMON and EMBRY, JJ., concur; SIMMONS, Retired Circuit Judge, sitting by order of the Chief Justice.


author: ALMON, Justice.

text:
    Eugene MOBLEY v. Sue F. TURNER.
    SC 1740.
    Supreme Court of Alabama.
    May 27, 1977.

      Michael A. Figures of Crawford, Blacksher, Figures & Brown, Mobile, for appellant.
    J. Milton Coxwell of Coxwell & Coxwell, Monroeville, for appellee.
   ALMON, Justice.

This appeal involves a boundary line dispute between Eugene Mobley, appellant-defendant, and Sue Turner, appellee-plaintiff. No record was made of the court proceedings. Pursuant to Rule 10(d) of the Alabama Rules of Appellate Procedure (1977), appellant submitted his “Statement of the Evidence” and appellee responded with his. The trial court approved the latter, from which we quote:

“This cause came on to be heard at a regular term of the Circuit Court of Monroe County, Alabama, Honorable R. E. L. Key, Circuit Judge, presiding. Both parties were present and were represented by counsel, as stated in Appellant’s Statement of Evidence.
“Testimony taken orally by the Court was to the effect that the parties were co-terminous owners of real property in Monroe County, Alabama, and that the boundary line between the lands of the respective parties was disputed.
“At that time, the parties with the knowledge and consent of their respective counsel and with the knowledge and consent of the Judge, agreed that Daniel R. Andress, Jr., a registered land survey- or, would be employed to survey the disputed boundary line and to establish a line with monuments thereto. Both parties agreed that the survey, to be done by Andress, would be binding on them and that the cause would be disposed of in that fashion.
“Andress later surveyed the premises in accordance with an order of the Court, pursuant to the parties’ agreement, and marked the line he established and reported his findings to the Court.”

On review, we will accept the approved statement of the evidence as true. U. S. v. Chesapeake and Ohio Railway Co., 4 Cir., 281 F.2d 698 (1960); Hawkins v. Missouri Pac. R. Co., 8 Cir., 188 F.2d 348 (1951). Rule 10(c) of the Federal Rules of Appellate Procedure is in substance identical to our Rule 10(d).

The error complained of by appellant is that the trial judge did not follow the procedure outlined by Tit. 47, §§ 5 and 6, Code of Alabama 1940, Recompiled 1958. He contends that § 6 requires the trial judge to file a written decree, and that such a decree does not exist. We cannot agree.

According to the approved statement of the evidence, both parties agreed in open court that a survey would be made and that it would be binding. In Carlisle v. McCleskey, 264 Ala. 436, 87 So.2d 831 (1956), the parties similarly agreed in open court to end their boundary line dispute by having a survey made and by being bound by that survey. The court held the survey was not made via Tit. 47, §§ 2-12, but rather, was in the nature of an arbitration agreement.

“ . . . Here the appointment of the surveyor, his duties and authority were by virtue of the agreement, more in the nature of an arbitration under sections 829 to 844, Title 7, Code, than a mere survey under sections 5 to 12, Title 47. True, section 831, Title 7, Code, requires the agreement to be in writing, but that is satisfied when it is made in open court. Snodgrass v. Armbrester, 90 Ala. 493, 7 So. 840; Samuels v. Scott, 212 Ala. 679, 103 So. 848; Prestwood v. Watson, 111 Ala. 604, 20 So. 600. See Equity Rule 71, Code 1940, tit. 7, Appendix.
“An award made under such an agreement has the properties of a judgment, and if it responds to the agreement of submission, Tabor v. Craft, 217 Ala. 276, 116 So. 132; 6 C.J.S. Arbitration and Award § 80, p. 219, it is subject to attack only for fraud, partially or corruption. Section 842, Title 7, Code.” Id. at 439, 87 So.2d at 834.

We believe Carlisle controls this case. However, even if Tit. 47, §§ 5, 6 applied, the trial judge would not be placed in error where appellant made no complaint of his procedure; even appellant’s statement of the evidence makes no claim to have complained of the judge’s procedure.

“Even admitting the irregularity of the decree for failing to set a date for hearing objections and to order the parties to show cause why the survey should not be made, the question is whether such failure here constitutes prejudicial error to reverse. We think that the proper remedy for testing the decree of the court appointing the surveyor [an interlocutory order and subject to alteration at any time before a final decree under this Court’s decisions in Stansell v. Tharp, 245 Ala. 270, 16 So.2d 857 (1944), and Tanner v. Dobbins, 251 Ala. 392, 37 So.2d 520 (1948)] would have been to file a motion in court to set it aside and allow objections to be filed. The rulings on such motion, if adverse, would be subject to review in an appropriate manner. See State v. Woodroof, 253 Ala. 620, 46 So.2d 553 (1950), and cases there cited.
“We are not to be understood as condoning the appointment of a surveyor without affording notice and an opportunity to object as provided for by statute. Objection to such irregularities should not be made for the first time on appeal.” McCullar v. Conner, 287 Ala. 455, 461, 252 So.2d 422, 427 (1971).

The judgment is affirmed.

AFFIRMED.

TORBERT, C. J., and BLOODWORTH, JONES and EMBRY, JJ., concur.

      . “§ 5. Survey may be directed. — Whenever in any suit pending in the circuit court in equity it is pertinent and material to the determination of the issue or issues therein or to the proper entering of a description in the decree therein, to establish or fix a disputed land line or boundaries between coterminous landowners, or to locate the position of a line of the government survey, or to locate a landmarker or other object, the court may, as hereinafter provided, direct a competent surveyor or surveyors to make a survey for the purpose of fixing or establishing the disputed land line or boundaries between coterminous landowners or of locating the position of a line of the government survey or of locating a landmarker or other object.”
      “§ 6. Decree that survey shall be made. — If the court is of the opinion that such survey should be made it shall enter a decree stating the reasons why, in its opinion, such survey should be made and fixing a day on which to hear objections thereof and directing the parties to said suit to show cause, if any, why such survey should not be made as proposed in said decree.”