author: MADDOX, Justice.

text:
    FIRST ALABAMA BANK OF MONTGOMERY, Co-executor and Trustee Under the Last Will and Testament of W. C. Adams v. Vera W. ADAMS, an Incompetent, by her Guardian, Adelia Adams Coker. Adelia Adams COKER, Co-executor Under the Last Will and Testament of W. C. Adams, Deceased v. FIRST ALABAMA BANK OF MONTGOMERY, N. A., Co-executor under the Last Will and Testament of W. C. Adams, Deceased.
    78-323, 78-408 and 78-408X.
    Supreme Court of Alabama.
    Feb. 29, 1980.
    As Modified on Rehearing April 25, 1980.

      John F. Dillon, IV and Jennie Lee Kelley of Dillon, Kelley & Gavin, Alexander City, for appellant/appellee, First Alabama Bank of Montgomery.
    Thomas Reuben Bell of Bell, Lang & Bell, Sylacauga, for appellee/appellant, Adelia Adams Coker.
   MADDOX, Justice.

“No interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest.”

Most lawyers will immediately recognize this as the statement of the Rule against Perpetuities, which, when read, seems simple enough; but, when applied, has confounded lawyers, judges and law students for ages. In fact, one law professor, in an article entitled “Perpetuities in a Nutshell” observed:

“We school teachers have delighted to make a mystery of the Rule against Per-petuities. We love to tell the old, old story of its tangled history; we love to trace its development through English cases which deal with settlements of incredible complexity; we love to point the finger of scorn at the mistakes of courts on both sides of the Atlantic; and most of all we love to spin out our webs of theory on relatively obscure points. The result is a very highly elaborated field of the law — a great advantage to those who know their way around in it, but precious little help to the ordinary practitioner who has had no particular occasion to explore this terrain but who finds himself with a perpetuities problem to handle. Leach, Perpetuities in a Nutshell, 51 Harv.L.Rev. 638 (1938).
Leach, in a footnote to his article, noted:
“If this paper fails of its purpose it has, at least eminent company. Lord Thurlow undertook to put the Rule in Shelley’s Case in a nutshell. ‘But’, said Lord Mac-naghten, ‘it is one thing to put a case like Shelley’s in a nutshell and another thing to keep it there.’ Van Grutten v. Foxwell, [1897] A.C. 648, 671.”

This opinion, which involves the application of the Rule against Perpetuities to a residuary trust created by a testator, will either confirm Leach’s belief that the Rule can indeed be put in a nutshell, or it will confirm his fear that his article may have failed of its purpose. The reader of the opinion will have to pass judgment individually to decide whether Leach’s belief or his fear is sustained.

The second issue presented is whether bearer bonds purchased by the testator and found in a safe-deposit box owned jointly by the testator and his widow are due to be awarded one-half to the widow and one-half to the testator’s estate.

The testator, W. C. Adams, died in August, 1978, leaving a substantial amount of real and' personal property. By will, he set up two trusts. Trust A is a “marital-deduction” trust of an amount calculated so as to take advantage of the maximum marital deduction permitted by federal estate tax laws. Trust B is funded by the residuary estate and is to be held by the bank, in trust, for the benefit of testator’s widow, for life, and then for the benefit of his only daughter, Adelia Adams Coker, for life. After the death of both his widow and daughter, the fund is to be held for the benefit of his grandchildren for life. As each grandchild dies, that grandchild’s share is to be paid free of trust to that grandchild’s “descendants” as each descendant attains age twenty-one. At the time of testator’s death, his widow, his daughter, and two grandchildren, Andrea and Wayne Coker, were living.

The pertinent language in Trust B reads as follows:

“(B) The other such share, to be known as ‘Trust B’, shall consist of the balance of my residuary estate, or my entire residuary estate if my wife predeceases me. I direct that any estate taxes due as a result of my death be paid from this part of my residuary estate as hereinbefore directed.
“(B)(1) The Trustee is authorized to accumulate the net income or to pay or apply so much to the use of my wife, Vera W. Adams, ip such amounts and proportions as my
said Trustee in its sole and absolute discretion shall deem advisable from time to time without regard to equality of distribution.
“(B)(2) At the death of my wife, Vera W. Adams, or at my death should she predecease me, the Trustee shall hold said trust estate in trust for the use and benefit of my daughter, Adelia A. Coker, or her descendants as follows:
******

“(B)(3) After the death of my wife, Vera W. Adams, and my daughter, Adelia A. Coker, or at my death should they both predecease me, the Trustee shall hold said trust estate in trust for the use and benefit of my grandchildren, and the descendants of any deceased grandchild of mine as may then be living, in equal shares, per stirpes. During the term of this trust as to any grandchild of mine entitled to share in said trust estate under the terms hereof, the Trustee shall use, expend and apply for his or her support, education and maintenance, such part of the income from his or her share of said trust estate, and of the principal thereof, as the Trustee deems necessary or desirable for said purposes so long as he or she shall live.

“(B)(4) The share of any deceased grandchild’s descendant who is entitled to share in said trust estate at the time of apportionment into shares shall vest in such descendant of a deceased grandchild of mine as of the date herein fixed for the apportionment of said share, but shall be held in trust for such descendant until he or she shall attain the age of twenty-one years, at which time it shall be transferred and paid over to him or her free from this trust. During the continuance of the trust as to the share of any such descendant of a deceased grandchild of mine, the Trustee shall use and apply such part of the net income from his or her share of said trust estate, and of the principal thereof, as the Trustee deems necessary or desirable for the support, education and comfort of such descendant.

“(B)(5) At the death of any grandchild of mine entitled to share in said trust estate under the terms of this Article of my will, leaving any descendant of him or her then living, then at the death of such grandchild, the Trustee, after first paying the expenses of his or her last illness and funeral, shall transfer and pay over to the descendants then living of such grandchild so dying, in equal shares, per stirpes, the share of said trust estate then held in trust for such grandchild so dying, provided, however, if any descendant of any such grandchild so dying shall have not attained the age of twenty-one years, then though the share of such descendant in said trust estate shall be deemed to have vested in him or her, the Trustee shall hold the same in trust for him or her until he or she shall attain the age of twenty-one years, using and applying for his or her support, education, and comfort, such part of the net income from his or her share of said trust estate, and of the principal thereof, as the Trustee deems necessary or desirable for said purposes.

“(B)(6) In the event that any grandchild of mine entitled to share in said trust estate under the terms hereof shall die prior to the distribution to him or her of all of his or her share of said trust leaving no descendant of him or her then living, then at the death of such child, the Trustee, after paying the expenses of his or her last illness and funeral, shall transfer and pay over the share of said trust estate then held in trust for such grandchild so dying, to such of my grandchildren, and the descendants of any deceased grandchild of mine as then are living, in equal shares, per stirpes; provided that if any such grandchild or descendant of a deceased grandchild of mine shall then have property held in trust for him or her under any provision of this will, then his or her share in the share of such grandchild so dying shall be added to, merged in, and administered and disposed of like such other property so held in trust for him or her.”

STATEMENT OF THE RULE

In Alabama, the Rule against Perpetuiti-es is that prescribed by the common law. Code 1975, § 35-4-4. Succinctly stated, the Rule provides that “no interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest.” Henderson v. Troy Bank and Trust Company, 250 Ala. 456, 34 So.2d 835 (1948); Ram age v. First Farmers and Merchants National Bank, 249 Ala. 240, 30 So.2d 706 (1947). Also see, Lyons v. Bradley, 168 Ala. 505, 511, 53 So. 244 (1910); and Simes and Smith, The Law of Future Interests, 2d ed., § 1222; Gray, The Rule Against Perpetuities, 4th ed., § 201.

NATURE OF THE RULE

The Rule against Perpetuities is a rule invalidating interests which vest too remotely. Indeed, it is often called the “rule against remoteness of vesting.” Leach, Perpetuities in a Nutshell, 51 Harv.L.Rev., 638, 639.

ELEMENTS OF THE RULE

The period of perpetuities is that period within which an interest must vest or fail. That period is twenty-one years after any reasonable number of lives in being at the creation of the interest, plus actual periods of gestation.

The future interest is invalid unless it is absolutely certain that it must vest within the period of perpetuities. Probability of vesting, however great, is not sufficient. The certainty of vesting must have existed at the time when the instrument took effect (in this case, at the testator’s death).

CONSTRUCTION AND PERPETUITIES

“The Rule against Perpetuities is not a rule of construction but a peremptory command of law. It is not, like a rule of construction, a test, more or less artificial, to determine intention. Its object is to defeat intention. Therefore, every provision in a will or settlement is to be construed as if the rule did not exist and then to the provisions so construed, the rule is to be remorselessly applied.” Gray, The Rule Against Perpetuities, 4th ed. § 629. Applying that statement to this case, our first duty is to construe the will exactly as we would if the Rule against Perpetuities did not apply, and interpret the words of the testator wholly without reference to it.

We now construe the testator’s will with the foregoing principles in mind. Construing the will, it is apparent to us that the testator made separate gifts to his widow, his daughter, “my grandchildren” and to “the descendants then living of such grandchild . . . dying.” The question is: do any of these gifts violate the Rule against Perpetuities? We hold that they do not, and reverse the trial court’s conclusion to the contrary.

The widow was living on the date of the testator’s death. The gift to her vested at that time. It is valid.

The gift to the daughter vests at the time both the testator and his widow are deceased. Although the daughter is specifically named as a beneficiary, there remains the condition that she survive both the testator and his widow before she may take her life interest. In any event, the interest in the daughter will vest, if at all, either at the death of the testator or a life in being (the widow), plus twenty-one years. It is valid'.

The bequest to “my grandchildren” vests at the time of the death of the surviv- or of the widow or the daughter. As we have previously stated, at the testator’s death, he had two grandchildren then living. Because the testator’s daughter survived him, there remains the possibility that additional grandchildren may be born after testator’s death. Plainly, the life interest to both Andrea and Wayne Coker, grandchildren who were living at the time of the testator’s death, would be valid. It is equally plain that the interest of a grandchild born to the testator’s only daughter after the testator’s death would be valid, because it would vest, if at all, at a time within twenty-one years after the measuring life of testator’s daughter.

It is the bequest under (B)(5) to the “descendants” of a grandchild which poses the problem in this case, especially as it relates to “descendants” of a possible grandchild born after the testator’s death.

Construing the will, the words “my grandchildren” would include grandchildren born after the testator’s death, but before distribution. It is perfectly clear that since the testator did not specify his two living grandchildren by name, other grandchildren could be born after his death, and the interest given to “descendants” of any afterborn grandchildren under (B)(5) could vest at a time beyond that allowed by the Rule against Perpetuities. This, without more, could make the gift invalid.

Leach discusses the rule as it would apply in a hypothetical situation which is quite similar to ■ that presented by Item (B)(5). Leach states:

“Second is the rule that where there is a gift to a class of sub-classes the gift to a particular sub-class can be valid even though the gift to another sub-class is too remote. Thus,
“T bequeaths a fund in trust to pay the income to A for life, then to pay the income to the children of A for their lives, and upon the death of any child of A to pay the principal upon which such child was receiving the income to the children of such child. A has two children: Ci, who was born before the death of T, and C2, who was born after the death of T. Plainly the life estates to both Ci and C2 are valid. Equally plainly the remainder to the children of C2 is invalid. The question concerns the remainder to the children of Ci. The share which is to be divided between them will be known at the death of A, since thereafter no children of A can be born; the fraction which each of the children of Ci is to take in the share will be known at the death of Ci; therefore all interests will vest within the life of the survivor of A and Ci, both of whom were in being at T’s death, and the gift is, of itself, valid. The fact that the contemporaneous gift to the children of C2 fails is immaterial.” 51 Harv.L.Rev. 638, 650.

We find that the gifts under Item (B)(5) to the “descendants” of Andrea and Wayne constitute bequests of a specific portion of the trust to separate and distinct subclasses. The portion being given is that share which Andrea and Wayne will respectively enjoy during their lifetime. Their shares will be known at the time of their mother’s (the daughter’s) death, since thereafter, no child of her can be born. Since these shares are certain, the fraction which each of the “descendants” of Andrea and Wayne will take, will be known at the respective deaths of Andrea and Wayne; therefore, the gifts to these subclasses will vest within the life of the survivor of lives which were in being at the testator’s death (i. e., Andrea and Wayne). They are valid.

As previously noted, the share which might go to any afterborn grandchild will vest within a period allowed by the rule, and will be known at the death of the daughter. It is clear, however, that the share which would be divided among the subclass of the “descendants” of such after-born grandchild, could vest at a time beyond that allowed by law, and such gift would be invalid; the fact that this gift to a subclass would fail, however, does not mean that the gift to the subclasses of the “descendants” of Andrea and Wayne must fail, as Leach notes in his hypothetical example.

Under the subject will, however, even the gift to the “descendants” of a grandchild who was not living at the time of the testator’s death is validated. The testator specifically included language in the will which we will refer to as a “saving clause” which reads as follows:

“The trusts created herein shall in no event continue for a period of time longer than the time allowed by law for the vesting of the share of any beneficiary in the trust estate. At the expiration of said time, unless said trust shall have sooner terminated in accordance with the provisions of this will, the property being held in trust herein shall immediately at the end of such period of time allowed by law, be transferred and paid over free from trust, to the beneficiary or beneficiaries then enjoying the use and benefit of the trust estate, and in the same proportions as in this will provided, irrespective of their ages at the time, and the trust shall immediately cease and terminate.”

We are of the opinion that the “saving clause,” properly construed, prevented any violation of the Rule against Perpetuities as to any bequest made under the will. “A provision will not be construed as violating the rule against perpetuities where there is a provision in the will that, if any of its provisions should become susceptible of an interpretation creating an estate of longer duration than permitted under the law, such provisions should be revoked as to the period of time beyond that permitted by law.” 70 C.J.S. Perpetuities § 35, p. 626. Likewise, the annotation at 91 A.L.R. 771, 772, states that “. . .it seems clear upon principle, and is in fact well established by the decisions, that even though a will in the first instance provides for the postponement of vesting for a stated number of years, or until a stated date, no rule against perpetuities is violated if the will, as a dominant limitation, further expressly provides (or provides by inference) that the interest shall vest during or at the expiration of such number of lives in being as may be validly used to designate a period of contingency or restraint.”

In Fitchie v. Brown, 211 U.S. 321, 29 S.Ct. 106, 53 L.Ed. 202 (1908), Mr. John Chipman Gray and Mr. Roland Gray, the author and editor, respectively, of the work, The Rule Against Perpetuities, argued successfully to the Supreme Court of the United States that the words “ ‘. . . for as long a period as is legally possible, the termination or ending of said trust to take place when the laws require it under the statute,’ ” validated a gift made under a will because “the time set for the distribution is not too remote, because the testator has expressly said it shall not be too remote; he has said it shall be legally possible. It is a necessary qualification of the time for distribution that it shall not be too remote. Dates which are too remote are expressly excluded by the testator.” The Supreme Court of the United States agreed, holding:

“The whole of the language of the will must be considered, and while it says the trust is to continue as long as it is legally possible, it must also be remembered that a distribution of the whole estate is to be made, and therefore the continuation of the trust must also be limited by the direction to distribute; or, in other words, the trust is to continue as long as is legally possible and as shall be consistent with making the distribution as directed by the will. This distribution must be made at a time which is not too remote,— that is, a time within which the trust would be valid, — for the testator provided that the trust should only last that long.” 211 U.S. 321, at 332, 29 S.Ct. 106, at 110, 53 L.Ed. 202, at 207.

Applying the “saving clause” to section (B)(5), we hold that the trust must terminate twenty-one years after the death of the survivor of the testator’s widow, his daughter, and two grandchildren living at his death (all lives in being at the testator’s death). Under the provisions of the will, the corpus will vest immediately in the persons enjoying the income of the trust if the trust has not terminated sooner. Because the trust must terminate, by its own provisions within the time limit for vesting, there is no violation of the Rule against Perpetuities. Any gift which has a possibility of remote vesting has been limited by the “saving clause” so as to make remote vesting an impossibility.

ON REHEARING

Rehearing is granted on the issue of bearer bonds. That part of the original opinion concerning bearer bonds is withdrawn; the remaining part of the original opinion is retained, and the following is substituted for that portion of the original opinion which has been withdrawn.

BEARER BONDS

Adelia Adams Coker, as next friend of the widow, Vera Adams, filed a petition to have all or half of the bearer bonds kept in the safety deposit box registered in the name of “Mr. or Mrs. W. C. Adams,” declared to be the property of the widow.

The trial court heard all testimony orally, and found that the widow could have cashed all the bonds at any time, that “equity and good conscience” dictated that she be given half the bonds even though the evidence showed that all the bonds were purchased by the deceased, and he was the only person to enter the box during his lifetime. From the decree finding that half of the bearer bonds belonged to the widow and half belonged to the deceased’s estate, executor First Alabama Bank of Montgomery appeals. We reverse.

In Garrison v. Grayson, 284 Ala. 247, 224 So.2d 606 (1969), the elements of a valid gift were set forth:

“It has long been a rule in this jurisdiction that there are three distinct requirements which must be met in order for one to convey a valid inter vivos gift. These are: An intention to give and surrender title to, and dominion over, the property; delivery of the property to the donee; and acceptance by the donee. Vinson v. Vinson, 262 Ala. 388, 79 So.2d 31; Hudgens v. Tillman, 227 Ala. 672, 151 So. 863.”

The party alleging that a gift was made has the “. . . burden of establishing the fact of gift by clear and convincing proof.” Walker v. Amason, 369 So.2d 786, 791 (Ala.1979).

We have carefully reviewed the record and the decree rendered by the court and we find that the party alleging the gift has not maintained the burden of proof required. The trial court’s finding that a gift was made is clearly erroneous.

In setting out his reasons for determining a gift had been made, the trial judge stated:

“It seems to the Court that in all equity and good conscience that Mrs. Adams should be given one-half of the bearer bonds. She could have cashed them all if she had so desired.”

Apparently the trial judge applied an incorrect standard for measurement of the burden on the party alleging the gift.

On appeal, great respect is paid to the trial court’s judgment but the reviewing court will revise the trial court’s judgment on questions of fact where, after making all proper allowances and indulging all reasonable intendments in favor of the trial court, it reaches the clear conclusion that the finding and judgment are wrong. Insurance Company of North America v. Mays, 278 Ala. 20, 174 So.2d 700 (1965).

The entire cause is due to be reversed and remanded for further proceedings not inconsistent with this opinion.

APPLICATION FOR REHEARING GRANTED AS TO OWNERSHIP OF BEARER BONDS; APPLICATION FOR REHEARING OVERRULED AS TO THE DISPOSITION OF TESTAMENTARY TRUST. OPINION MODIFIED, REVERSED AND REMANDED.

TORBERT, C. J., and JONES, SHORES and BEATTY, JJ., concur.

      . The present case virtually duplicates the facts of this hypothetical. The only difference between the two is that in the hypothetical a ' single life interest is given to A, whereas in this case successive life interests are given to the testator’s widow and only daughter. This difference, however, is wholly insignificant as far as an application of the Rule is concerned. In making a comparison between the two sets of facts, we reach the following conclusions: the . . life interest of A in the hypothetical ■ equates with the life interest in the testator’s only daughter; the interest of the “children of A” in the hypothetical equates with the gift to “my grandchildren”; and, finally, the interests of the “children of such child” in the hypothetical equates with the gift to “the descendants then living of such grandchild . . dying.” The initial life estate of the testator’s widow has no impact on this correlation; thus, having a similar set of facts, we should adopt a similar approach and analysis. It is true that in presenting and analyzing his hypothetical, Professor Leach made it absolutely clear that his analysis would only apply when the testator separated the ultimate remainder into subclasses. We feel that in the present case the testator did so.


source: Caselaw Access Project

author: BEATTY, Justice.

license: Public Domain

text:
    CITY OF BIRMINGHAM, a Municipal Corporation v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a corporation.
    78-757.
    Supreme Court of Alabama.
    March 28, 1980.
    As Corrected On Denial of Rehearing May 2, 1980.

      James K. Baker, City Atty., J. M. Breckenridge, of Cabaniss, Johnston, Gardner, Dumas & O’Neal, Birmingham, for appellant.
    Timothy M. Conway, of Rives, Peterson, Pettus, Conway, Elliott & Small, Birmingham, for appellee.
   BEATTY, Justice.

This is an appeal from a judgment in favor of the plaintiff, State Farm Mutual Automobile Insurance Company, Inc. (State Farm), in its declaratory judgment action against the City of Birmingham (Birmingham) and the latter’s counterclaim. We affirm.

The action grew out of Birmingham’s interpretation and application of Code of 1975, § 11-51-120 to State Farm and its refusal to apply, instead, the provisions of § 11-51-121. Those taxation statutes allow a municipal corporation to impose a privilege tax under this pertinent language:

§ 11-51-120. Insurance companies — Fire and marine insurance companies.
No license or privilege tax shall be imposed by any municipal corporation upon any fire or marine insurance company doing business in such municipality except upon a percentage of each $100.00 of gross premiums, less return premiums, on policies issued during the preceding year on property located in such municipality. Such percentage shall not exceed four percent on each $100.00 or major fraction thereof of such gross premiums,
§ 11-51-121. Same — Insurance companies other than fire and marine insurance companies.
(a) No license or privilege tax . shall be imposed by any municipal corporation upon any insurance company, other than fire and marine insurance companies, . . which shall exceed . the following amounts:
(4) Each such insurance company, in cities and towns having a population of more than 50,000, $50.00 and $1.00 on each $100.00 and major fraction thereof of gross premiums, less return premiums, received during the preceding year on policies issued during said year to citizens of said cities and towns.

The basis of the lawsuit is Birmingham’s assertion that § 11-51-120 applies to State Farm, not § 11-51-121; that is, that State Farm Mutual Automobile Insurance Company (not to be confused with its subsidiary company, State Farm Fire and Casualty Company) is a “fire insurance company” issuing policies “on property located” in Birmingham, and therefore that State Farm is obliged to pay a privilege tax of four percent on each $100.00 of its gross premiums earned in Birmingham. State Farm’s position is that it is a “casualty insurance” company and therefore is an insurance company “other than fire and marine,” and thus is obligated to pay the lesser privilege tax of one percent on each $100.00 (plus $50.00) called for under § 11-51-121.

Having been unable to resolve the question administratively, State Farm brought this action to have the Jefferson County Circuit Court declare that it should be taxed under § 11-51-121. By counterclaim Birmingham sought to make State Farm liable for privilege taxes for 1978 and retroactively to 1973, plus penalties and interest for State Farm’s refusal to pay the amount allegedly owed. Following an evidentiary hearing the trial court declared that State Farm was not a fire insurance company under § 11-51-120, but was a company “other than [a] fire and marine insurance edmpan[y]” and thus subject to § 11-51-121. Birmingham appeals.

The issues presented by the parties focus initially upon the interpretations to be given these two statutes. Birmingham insists that these statutes and their predecessors, Act No. 163, Acts of Alabama, 1927, pp. 150-151; Act No. 194, Acts of Alabama, 1935, pp. 552-553; Tit. 37, §§ 736 (“other than fire and marine insurance companies”) and 739 (“any fire or marine insurance company”), established classifications based upon “property” or “people.” There is, states Birmingham, one classification authorizing a tax measured by four percent of premiums received from policies “on property located in [the] municipality” (see § 11-51-120), while another classification authorizes a tax measured by one percent of premiums received from policies issued “to citizens of said cities and towns” (see § ll-51-121(a)(4)). According to Birmingham, these are separate classifications which relate to the business, conducted, and the business conducted by State Farm is the selling of “automobile physical damage insurance.” That kind of insurance, Birmingham contends, is “property” insurance which is a class of “fire insurance,” making State Farm a fire insurance company. Birmingham cites as authority for this proposition several cases, including City of Sheffield v. Home Insurance Co., 234 Ala. 382, 174 So. 779 (1937); City of Sheffield v. General Exchange Insurance Corp., 234 Ala. 386, 74 So. 782 (1937); and Motors Insurance Corp. v. City of Birmingham, 269 Ala. 339, 113 So.2d 147 (1959).

The decisions in the Sheffield cases were based upon stipulations of facts. It is apparent that neither of those cases dealt with the nature of the insurance companies involved therein — it appears to have been assumed for the question in issue that the insurance companies were “fire and marine” companies and thus subject to the rate of up to four percent of gross premiums. The basic question litigated concerned the municipality’s right to tax the companies at all because of the novel way in which the policies were sold. This Court held in both cases that the city could impose the tax, even though the policies were issued outside the city, because the nature of the transactions involved insurance business conducted in Sheffield where the insured property, automobiles, was. located.

In Motors this Court held that for the purpose of the municipal license statute Birmingham could classify Motors Insurance Corporation as a “fire insurance” company even though the only insurance it had issued since its organization was automobile physical damage insurance. That decision was based upon several considerations. For one thing, the insurance issued covered risk of loss by fire, as well as theft, collision and “comprehensive” coverage. For another, Motors had represented to the State Department of Insurance for many years that it was a “fire or marine” company and paid a premium tax accordingly. And finally, Motors itself was chartered as a fire insurance company. It is .significant, also, that Motors Insurance Corporation insisted that automobile physical damage insurance had become a separate class of insurance from ordinary fire insurance and, therefore, that a company which issued the former could not be classified as a fire insurance company. The Court in Motors referred (at 269 Ala. 342, 113 So.2d 147) to the stipulation contained in City of Sheffield v. General Exchange Insurance Corp., supra, which identified General as organized as and engaged in a fire insurance business (and selling only automobile physical damage insurance), and added at 342-3, 113 So.2d at 149-150:

The case is significant, ... in that it refutes entirely, . . . the insistence of able counsel for Motors . that it cannot be reasonably asserted that a company which issues and sells only automobile physical damage insurance is a fire insurance company within the meaning of § 739, Title 37, [now § 11-51-120] ....

That is, an insurance company selling automobile physical damage insurance might be classified, nevertheless, as a fire insurance company, as was Motors Insurance Corporation under the evidence noted above. But what is also significant is that, in determining the character of the insurance company, reference was made not only to its charter but also to the conduct and character of its business.

We have also been cited to State Farm Mutual Auto Insurance Company v. Board of Trustees of Firemen’s Pension & Relief Fund, 291 Ala. 250, 279 So.2d 512 (1973). In that case this Court considered whether State Farm was a “fire insurance” company under Act No. 307, Acts of Alabama, 1943. That Act, in general, provided that a “fire insurance” company doing business in certain cities would pay into a Firemen’s Pension and Relief Fund “[a] sum equal to one and one-half per centum of the gross premiums, less returned premiums,” on business conducted during the preceding year. This Court held that State Farm was not a “fire insurance company” for the purposes of Act No. 307 merely because it wrote automobile physical damage insurance:

[W]e are not convinced that the legislature, in Act 307, intended the words “fire insurance company” to be so broad. .
We conclude that the legislature intended in Act 307 that every insurance company insuring property against loss by fire would be considered to be a “fire insurance company” and that it would be liable to pay into the Firemen’s Pension and Relief Fund “a sum equal to one and one-half percentum of the gross premiums, less returned premiums, received by such fire insurance company for and on account of business, including all renewals of fire insurance.” The Motors case is also partly distinguishable, in that in Motors the company was chartered as a fire insurance company and so listed itself for state tax purposes and paid a lower rate of tax to the state because of such classification. Conversely, State Farm was not chartered as a fire insurance company and paid a higher state tax as a company other than a fire or marine or fire and marine insurance company.

291 Ala. at 255-256, 279 So.2d at 515-516. This Court then determined that taxable liability existed under Act 307, not because State Farm wrote automobile damage insurance, but because part of its business was insuring property against the risk of fire, and it was that part of its premium income which was held to be subject to the pension tax. The significance of Relief Fund lies in the fact that the statutory classifications established in §§ 11-51-120,-121 were not utilized to determine liability for the tax, but instead the inquiry under Act 307 was whether the company, of whatever nature, did any fire insurance business.

That is not the issue in the instant case, however. As the Sheffield, Motors and Relief Fund cases recognize, the legislature has established two categories of insurance which may be subject to the municipal privilege tax: fire and marine, and other than fire and marine. Motors, at 269 Ala. 343, 113 So.2d 147, recognized that implementation of those classifications was “not free of difficulty,” perhaps, as this record discloses, because of the historical development of insurance companies, the gradual expansion of coverages, and the fact that companies organized for one type of risk (e. g., fire) might actually write other coverage partially or exclusively. It is notable that in the Sheffield cases and in Motors as well, both the trial court and this Court looked to the evidence to determine the nature of the insurance company. Indeed, the emphasis of the statutes under consideration is not upon the amount of earned premium alloca-ble to fire insurance, but upon the character of the company itself.' The arguments of counsel for both sides take this position. Under these statutes the amount of premium so allocable is one, but only one, incident or element of that character. The record discloses that State Farm does not in fact write a separate policy covering only automobile physical damage risks. Instead the company issues one policy making available the following coverages: bodily injury and property damage liability, medical payments, comprehensive, collision, uninsured motor vehicle, automobile death indemnity and specific disability, total disability and loss of earnings, emergency road service, and automobile rental reimbursement. The comprehensive coverage pays for loss to the vehicle (except from collision) due to missiles, falling objects, theft, larceny, explosion, earthquake, windstorm, hail, water, flood, malicious mischief or vandalism, riot or civil commotion, collisions with birds or animals, and fire. (The company also writes health and accident policies.) This evidence justifies State Farm’s contention that it is a “casualty” company, the classification, incidentally, which it occupies with the State Department of Insurance for rate regulation as well as for State Taxation. -Examination of the evidence supports the finding of the trial court, therefore, that State Farm falls into the category of “other than fire and marine.” And because we have no legislative guidance on the proper classification to be accorded to any particular company, this functional test is the appropriate test to apply in individual cases. In other words, the nature of the principal business endeavor, as manifested by its charter, its activities and its operation's, will control the application of the classifications established by §§ 11-51-120,-121.

Birmingham also asserts a constitutional issue, viz., that it would be an unlawful discrimination to hold that a municipality could apply the 4% tax to a fire insurance company writing only automobile physical damage insurance and to apply the 1% tax to casualty companies writing those coverages and others. This argument is made to buttress Birmingham’s position that its construction of the statutes is constitutional, while State Farm’s position is not. It is appropriate to note that the trial court found that this issue had been untimely raised, /. e., without pleading and after trial. Although we are in accord with that finding, nevertheless we are prompted to observe that we perceive no discrimination in the application of these statutes. They create two classifications. The tax applicable to each is equal and uniform to the companies falling within either classification. Nachman v. State Tax Commission, 233 Ala. 628, 173 So. 25 (1937). Those classifications have not been shown to be arbitrary or capricious, Henry v. Shevinsky, 239 Ala. 293, 195 So. 222 (1940), but rest upon substantial differences in the natures of the companies to which they apply. State v. Pure Oil Company, 256 Ala. 534, 55 So.2d 843, 846 (1952); see generally 53 C.J.S. Licenses § 22b(l) and (2).

Having decided the controlling issue, it is unnecessary to reach the other points raised by the defendant. The trial court’s judgment must be, and is, affirmed.

AFFIRMED.

TORBERT, C. J., and MADDOX, JONES and SHORES, JJ., concur.


author: TORBERT, Chief Justice.

text:
    UNIVERSAL DEVELOPMENT CORPORATION v. Stephen J. SHADER.
    78-708.
    Supreme Court of Alabama.
    May 2, 1980.

      Harry Asman, Birmingham, for appellant.
    William W. Conwell and Terry W. Gloor, Birmingham, for appellee.
   TORBERT, Chief Justice.

This is an appeal from an order denying the plaintiff, Universal Development Corporation, specific performance, damages and other relief sought against the defendant, Stephen J. Shader. The facts which gave rise to this cause of action, as found in the final judgment of the Jefferson County Circuit Court, are as follows: On December 31, 1977, Universal Development Corporation, as purchaser, and Stephen J. Shader, as seller, contracted to buy and sell a parcel of land in the Red Mountain Park area. The contract provided that the sale would be closed on or before December 31, 1978. Pending the closing, Universal Development Corporation was to pay monthly interest payments of $667. These payments were to be forfeited as liquidated damages in the event the purchaser failed to carry out the terms of the agreement. The contract further provided that “The seller warrants that sewer facilities are available to this site.” This contract was written by the president of the plaintiff, Universal Development Corporation. The trial court specifically found as a fact that on December 31, 1977, there existed an operable sewer line along the middle of Vulcan Road which abutted and adjoined the lot in question. The evidence at trial showed that the lot in question was in the sewer drainage area which was subject to a moratorium by the Alabama Water Improvement Commission but that the lot in question, along with other lots in a specific subdivision, had been exempted from the moratorium. Because of such exemption the lot in question was eligible for a sewer connection permit on December 31, 1977.

On November 14, 1978, the Alabama Water Improvement Commission- lifted its sewer moratorium but Jefferson County simultaneously imposed its own moratorium on sewer connections within the same geographical area. This prevented the lot'in question from being eligible for a sewer connection on the date set for closing, to-wit, December 31, 1978.

By agreement the parties changed the closing date to January 2, 1979, on which date the president of Universal Development Corporation called Mr. Shader’s, attorney and asked for a letter confirming that sewer facilities were available. The attorney responded verbally and in writing that he could not make such a warranty. Thereafter the plaintiff Universal Development Corporation failed to appear and close on the date set for closing. On January 12, 1979, the plaintiff brought this action, seeking to delay the closing date of the sales contract to such time as the defendant was able to warrant the availability of sewer connections to the site. The trial court denied all the relief sought by the plaintiff, reasoning:

The evidence shows that at the time of the contract, sewer facilities were available to Lot 12 and that the seller made a warranty of such existing fact. However, at the time for closing the sale, such condition no longer existed due to governmental action outside of the control of either party, but that the purchaser would not fulfill its part of the purchase without a further warranty that sewer facilities were then available for use. The seller could not make such a warranty due to the prior events of the moratorium and the contract expired by its written provisions.
Based upon these matters, the Court concludes that Shader did not breach the sales contract by refusing to make a present warranty as to the availability of sewer facilities when he knew that such was no longer true and had no assurance when sewer facilities would be available to the lot.

As demonstrated in the above excerpt from the trial court’s opinion, the court held the warranty in the contract was ambiguous as to whether it was meant as a present warranty of existing fact at the time the contract was written or whether it was intended as a continuing warranty, the conditions of which must be met at the time of closing. Because of this ambiguity perceived in the warranty the court admitted parol evidence.

When the terms of a contract are unambiguous, determination of its meaning is a question of law and should be decided without resort to extrinsic evidence. Travelers Insurance Company v. Kernachan, 283 Ala. 96, 214 So.2d 447 (1968); United States v. Waterman S. S. Corporation, 397 F.2d 577 (5th Cir. 1968). Where the terms of the contract are of doubtful meaning or the language of a contract is ambiguous, pre-contract negotiations and conduct of the parties may be looked to by the trier of fact as an aid in interpreting the contract. C. F. Halstead Contractor, Inc. v. Dirt, Inc., 294 Ala. 644, 320 So.2d 657 (1975); Johnson-Rast & Hays, Inc. v. Cole, 294 Ala. 32, 310 So.2d 885 (1975). Whether or not a written contract is unclear and ambiguous is a question of law for the court. C. F. Halstead Contractor, Inc. v. Dirt, Inc., supra; Wire-grass Construction Company v. Tallapoosa River Electric Cooperative, Inc., 365 So.2d 95 (Ala.Civ.App.1978).

The warranty in the instant case is ambiguous in that the language of the warranty does not indicate whether the parties intended that warranty to be effective only at the time the contract was written or at the time of closing as well. The trial court, recognizing the ambiguity in the warranty, admitted parol evidence; and, as the trier of fact determined that the true intention of the parties was that the warranty was a present warranty made at the time of contracting and that the parties did not intend that that warranty continue in effect to the time of closing. Where the trial court’s determination is based on evidence, a part of which was offered orally, its finding has the effect of a jury verdict and will not be disturbed on appeal unless plainly and palpably erroneous. Suddeth v. Suddeth, 366 So.2d 1102 (Ala.1979); Hall v. Polk, 363 So.2d 300 (Ala.1978).

For the reasons stated above, we hold that the warranty at issue was ambiguous and the trial court properly admitted parol evidence of the parties’ intentions. The trial court’s holding, based on evidence heard ore tenus, that the warranty was a present warranty of existing fact is not plainly erroneous. Therefore, the ruling of the trial court should be and is hereby affirmed.

AFFIRMED.

MADDOX, JONES, SHORES and BEAT-TY, JJ., concur.


author: SHORES, Justice.

text:
    Kenneth FOX et al. v. Marie E. WOODS, Executrix.
    78-717.
    Supreme Court of Alabama.
    May 2, 1980.
    W. Howard Donovan, III, and E. Ray Large, of Large & Donovan, Birmingham, for appellants.
    Marshall Timberlake of Balch, Bingham, Baker, Hawthorne, Williams & Ward, Birmingham, for appellee.
   SHORES, Justice.

This case involves more than ten years of litigation in four separate court systems in two states. Appellants, a group of Detroit investors, originally filed suit against Ernest H. and J. D. Woods in the United States District Court for the Eastern District of Michigan. That suit generally alleged violations of federal securities laws on the part of the defendants in the formation and operation of a company known as the National Cibo House, a franchised fast food operation. Because of jurisdictional problems, many of the plaintiffs were severed from the federal litigation and, later, .in 1971, filed an action in Michigan state court. Personal service on both Ernest H. and J. D. Woods was had in the state litigation, and both were represented by Michigan attorneys.

On November 24, 1972, during the pend-ency of both the state and the federal litigation, and prior to judgment in either, Ernest H. Woods died. His last will and testament was filed for probate in Jefferson County, Alabama, where he resided, and letters testamentary were issued to his widow, the defendant here, Marie E. Woods, on December 8,1972. However, his Michigan attorneys did not learn of his death until the fall of 1974, nor was his widow made aware of the pendency of the Michigan action until that time. A stipular tion for substitution of parties was executed and filed for record in the state litigation on January 24, 1975, by counsel for plaintiffs. Default judgments were entered in both the federal and state court suits against Ms. Woods, as executrix of her husband’s estate, who refused to defend, contending that the claims were barred due to the failure of the plaintiffs to present such claims in a timely manner against the estate of Ernest H. Woods pursuant to the requirements of the Alabama non-claims statute, Code 1975, § 43-2-350. Plaintiffs then commenced this action in the Circuit Court of Jefferson County to enforce the judgment obtained in Michigan. Cross motions for summary judgment were filed both by plaintiffs and defendant based on the pleadings and affidavits of the various attorneys. In addition, it was stipulated by the parties:

That no claims by any of the plaintiffs in the lawsuit pending in the Circuit Court of Wayne County, Michigan were presented to the Probate Court of Jefferson County, Alabama against the Estate of Ernest H. Woods, deceased, within the six (6) month period of limitation as provided for in Tit. 61, Sec. 211, Code of Alabama 1940 (Recomp.1958), [now Code 1975, § 43-2-350] ....

After a hearing on the motions, the trial judge denied the plaintiffs’ motion and granted the defendant’s. This appeal was then taken by plaintiffs. For the reasons discussed below, we affirm the action of the trial court.

Both parties devote much of their briefs to the issue of the validity of the Michigan judgment. Under the view that we take of this case, it is unnecessary to reach that issue. Even assuming that the Michigan court properly obtained jurisdiction over defendant, and that the judgment is valid in all regards, plaintiffs/appellants are still barred from asserting their claim against defendant based on that judgment by our non-claims statute, Code 1975, § 43-2-350.

In determining which law applies, that of Michigan or that of Alabama, with respect to the failure of the plaintiffs to present a claim against Mr. Woods’s estate, we are guided by principles elaborated long ago by the United States Supreme Court. In Security Trust v. Black River National Bank, 187 U.S. 211,23 S.Ct. 52, 47 L.Ed. 147 (1902), that Court held that the time and manner of presenting a claim under a state non-claims statute is to be governed by the law of the state in which the claim is to be filed. See also Ransom v. Brennen, 437 F.2d 513 (5th Cir. 1971), wherein it is held that the time and manner in which a claim against a decedent’s estate must be proven is to be governed by the law of the state in which the proof is sought to be made. Thus, Alabama law is to be applied.

Code 1975, § 43-2-350(b), reads as follows:

All claims against the estate of a decedent, other than the claims referred to in subsection (a) of this section, whether due or to become due, must be presented within six months after the grant of letters testamentary or of administration; and if not presented within that time, they are forever barred and the payment or allowance thereof is prohibited.

This bar cannot be waived by the personal representative of the decedent. Branch Bank v. Hawkins, 12 Ala. 755 (1848). “All claims” has been construed to mean:

Every claim, or demand, existing against the testator or intestate at the time of his death, or subsequently accruing — every legal liability of either character, to which the personal representative can be made to answer, in courts of law or of equity, or which can charge the assets in his hands subject to administration. .

Jones v. Drewry, 72 Ala. 311, 315 (1882).

Tort claims as well as contract claims are subject to the bar. Moore v. Stephens, 264 Ala. 86/84 So.2d 752 (1956). Claims represented by foreign judgments are not excepted from operation of the statute. Jones v. Drewry, supra.

Thus, although a judgment against an administrator is obtained in a sister state, the claims are nevertheless barred in Alabama where not presented within the time limit set by the statute. Reed v. Bloodworth, 200 Ala. 444, 76 So. 376 (1917).

Appellants contend that defendant is es-topped from asserting the non-claims defense by the stipulation of substitution of parties because, under Michigan law, she could have raised that defense prior to the stipulation. This, however, merely goes, once again, to the validity of the Michigan judgment. Even assuming that the judgment is valid, appellants must comply with Alabama procedure in seeking to enforce it. As stated in Jones v. Drewry, supra at 317:

The validity, or justness of the debts, is not the question now involved. The question is, whether the creditors have done an act which the statute of this State declares a condition precedent to their right to charge the assets subject to administration in the courts and under the laws of this State.

Appellants do not contend that they have complied with Code 1975, § 43-2-350. Their claims are thus barred, and the judgment of the trial court must be affirmed.

AFFIRMED.

TORBERT, C. J., and MADDOX, JONES and BEATTY, JJ., concur.


author: JONES, Justice.

text:
    Patricia Ann TANT v. WOMEN’S CLINIC, a corporation. Jackie Leon TANT v. WOMEN’S CLINIC, a corporation.
    79-84, 79-85.
    Supreme Court of Alabama.
    May 2, 1980.

      Ralph E. Coleman, Birmingham, for appellants.
    Bibb Allen and Reggie Copeland, Jr., of London, Yancey, Clark & Allen, Birmingham, Arthur Fite, III, of Merrill, Porch, Doster & Dillon, P. A., Anniston, for appel-lee.
   JONES, Justice.

These consolidated medical malpractice suits (including the husband’s derivative action for medical expenses and loss of services), claiming damages for negligence and lack of informed consent in the performance of a vaginal hysterectomy, present two dispositive issues:

1. Whether the trial Court erred in directing a verdict for the Defendant on the negligence claim where the urologist whp performed the corrective surgery testified as follows:

“Q In a vaginal hysterectomy would it be anticipated that the ureter would be sutured in an operation?
“A No, Sir.
“Doctor, is it in keeping with the standard of care exercised by obstetricians in this community to suture both ureters during an operation?
“A Of course not.”

2. Did the trial Court err to reversal in not putting the case to a jury on the lack of informed consent claim where the only proof relating to informing the patient of the risk attending the operation was the general consent form executed by the patient upon entering the hospital?

We hold that the trial Court erred in granting Defendant’s motion for a directed verdict as to both claims. Thus, we reverse the judgments appealed from and remand the causes for further proceedings.

Appellee insists, and we agree, that professional malpractice cases, unlike negligence cases generally, require a unique quality of proof of the alleged wrongdoing. Only in the most extreme cases will the jury be permitted to find professional misconduct, resulting in injury within the doctor/patient relationship, absent expert testimony as to the standard of care which the doctor is alleged to have breached. The rule is summarized at 61 Am.Jur.2d, Physicians, Surgeons, etc., § 202 (1972), p. 337, that expert testimony is usually “an indispensable prerequisite to the establishment of liability in obstetrical malpractice cases.” See, also, Thomas v. Berrios, 348 So.2d 905 (Fla.App.1977).

While we have no hesitancy in concluding, consistent with Appellee’s contention, that this case does not fall within the exception that would allow a jury to exercise its fact-finding prerogative to adjudge liability absent expert testimony, this is not the issue before us. The issue here is whether the testimony of Dr. Hensleigh (the corrective urological surgeon) meets the expert testimony test to overcome the Defendant’s motion for directed verdicts.

Appellee’s brief, in support of affirmance, states:

“Plaintiffs had no expert testimony on the issue of negligent treatment by the defendants. Plaintiffs contend that the alleged conflict in the testimony of Dr. John Hensleigh presented some scintilla on this issue. A clear reading of what plaintiffs contend is a contradiction in Dr. Hensleigh’s testimony shows it was not a contradiction but rather an explanation due to the vague and ambiguous questions asked of the doctor by plaintiff’s counsel. Those questions were as follows:
“[Here appear the two questions and answers quoted above].
“These questions were asked of Dr. Hensleigh during his deposition and later read into the record when plaintiffs introduced Dr. Hensleigh’s deposition. Plaintiffs’ counsel never attempted to ask Dr. Hensleigh any questions in order to clarify these answers and, more importantly, never made any effort to relate the answers ... to the particular facts at hand.
“In explaining the answers [when called as a witness for Defendant during trial,] Dr. Hensleigh testified that in a vaginal hysterectomy it is a recognized complication to suture nearby organs or parts of the anatomy. Dr. Hensleigh additionally related the standard of care to the instant case when he testified that he found no violation of the standard of care concerning a vaginal hysterectomy. Dr. Hensleigh was then allowed to explain his earlier answer and did so:
“ ‘That’s all right. I meant that it is not part of the surgical procedure to tie off the ureters. So, that a surgeon is concerned about the ureters at all times. It is almost of more concern to them than the actual hysterectomy. They constantly perform due care to try not to do it.’ ”
“A review of the full testimony of Dr. Hensleigh clearly indicates that it was his opinion that there has been no violation of the standard of care in the treatment of Mrs. Tant. Clearly there was no scintilla at the close of the evidence in Plaintiffs’ behalf.”

The weakness of this contention is that it reduces the validity of this evidence (i. e., its weight, credibility, and legal sufficiency) to a question of law. In essence, Appellee (says that the trial Court was authorized to conclude, as a matter of law, in light of Dr. Hensleigh’s subsequent “explanation,” that his earlier deposition testimony was neutralized and rendered insufficient for submission to the jury in support of Plaintiffs’ claims. Whether Dr. Hensleigh’s “live” testimony on behalf of the Defendant is characterized as contradictory or as explanatory, with respect to his earlier testimony during deposition, is immaterial to our instant inquiry. In either event, it is solely within the province of the jury to evaluate its weight and its credibility.

Both questions set out above from Dr. Hensleigh’s deposition and read into evidence at the trial are proper and clear; the Deponent’s answers are definitive and unequivocal, without any indication that he was prevented from making whatever explanation he may have thought appropriate; and no explanation of his answers was elicited from Dr. Hensleigh by Appellee during the taking of his deposition.

The election of the Defendant to call Dr. Hensleigh as its witness and seek further explanation of his earlier answers to Plaintiffs’ questions was entirely proper; but the trial Court invaded the province of the fact finder in ruling as a matter of law that his earlier testimony no longer met the minimum evidentiary efficacy for jury submission. Huff v. Vulcan Life and Accident Insurance Co., 281 Ala. 615, 206 So.2d 861 (1968); Parkinson v. Hudson, 265 Ala. 4, 88 So.2d 793 (1956).

To be sure, it is quite clear that Dr. Hensleigh’s earlier testimony, in spite of the contradictory or explanatory nature of his subsequent testimony, not only furnishes a scintilla of evidence for submission of Plaintiffs’ claims to the jury, but, if believed by the jury as to the appropriate standard of professional care, it is likewise legally adequate to support a jury verdict in their favor. By' the same token, of course, the jury, upon consideration of all of the evidence, may exercise its fact-finding prerogative in favor of the Defendant.

Appellants also assert error in the trial Court’s failure to submit to the jury their claims based upon lack of informed consent. We agree. Appellee’s brief summarizes its counter position as follows:

“Plaintiffs further argue that there was a scintilla at the close of the evidence concerning the lack of informed consent. As a basis of this contention they cité to the testimony of Mrs. Tant. A full reading of Mrs. Tant’s testimony in this area indicates that the only person she spoke with at the Women’s Clinic was Dr. Alig. The Court did not allow the Plaintiffs to offer Mrs. Tant’s testimony as to the transaction with Dr. Alig as it was improper evidence under the Dead Man’s Statute .
“Plaintiffs contend that by striking the Estate of Dr. Alig as a party-defendant that they were then entitled to introduce the testimony by Mrs. Tant concerning conversations with Dr. Alig. However, Dr. Brockwell testified that Dr. Alig was a representative of the Women’s Clinic when he treated Mrs. Tant. Because of Dr. Alig’s relationship to the remaining defendant, Women’s Clinic, the trial court properly excluded the offered testimony of Mrs. Tant as this type situation is one that is contemplated as being included within the bar of the [Dead Man’s Statute, § 12-21-163], National Union Fire Insurance Company v. Weather wax & Gentry, 247 Ala. 143, 22 So.2d 733 (1945) and West Point Pepperell, Inc. v. Bradshaw, 377 F.Supp. 154 (Dist.Ct., Ala.1974).
“Thus a review of the actual testimony shows that there was no scintilla on behalf of the Plaintiffs in regard to this theory.”

We agree with this proposition and the authorities cited in its support. This argument, however, overlooks the fact that Plaintiffs sought only to prove the absence of a transaction. It is a transaction with the deceased that is proscribed by the Dead Man’s Statute; the denial of a transaction —i. e., a conversation between Dr. Alig and Mrs. Tant — is admissible. Wesson v. Taylor, 240 Ala. 284, 286, 198 So. 848, 850 (1940); Delony v. O’Reilly, 235 Ala. 386,179 So. 207 (1938); Blount v. Blount, 158 Ala. 242, 48 So. 581 (1909).

The record is clear that the trial Court ruled adversely to Appellants on the lack of informed consent issue because it concluded that the Dead Man’s Statute prohibited them from meeting their legal burden of proof, and not because the general consent form executed by Mrs. Tant constituted a legal defense to their claims. Consequently, we pretermit any discussion of the substantive law of informed consent. (We note that both Appellants and Appellee have indulged this presumption and neither has briefed the law in this area.)

We have reviewed the remaining secondary issues raised by Appellants; and, apart from the primary issues discussed herein, we find no further error which would require reversal.

For the reasons set out in this opinion, the judgments below are due to be, and hereby are, reversed and these causes are remanded for a new trial.

REVERSED AND REMANDED.

TORBERT, C. J., and MADDOX, SHORES and BEATTY, JJ., concur.

      . The trial Court’s grant of a directed verdict for the Defendant was based upon an eviden-tiary ruling under the Dead Man’s Statute .and not a ruling relative to the law’s recognition vel non of a cause of action for lack of informed consent.

      . For an excellent discussion of the law of informed consent (though not necessarily for its holding), see Canterbury v. Spence, 464 F.2d 772 (D.C.Cir. 1972).


text:
    Ruby Lee Dunn HUDSON et al. v. Nancy Lou Dunn deLAVAL et al.
    79-225.
    Supreme Court of Alabama.
    May 2, 1980.
    Alton L. Turner and Wendell W. Mitchell, Luverne, for appellants.
    Ben H. Lightfoot, Luverne, for appellees.
   SHORES, Justice.

Plaintiffs are the children of G. W. Dunn and Lucy Dunn. ,The defendants are children of G. W. Dunn by a previous marriage and Lucy Dunn by a previous marriage, each of whom had eight children. The plaintiffs claimed title to the property involved under an instrument dated December 1, 1964, and asked the court to quiet title to the land in them. They asked the court to order the defendants to accept the sums of money set out in the instrument.

The defendants contended that the instrument was not a deed, and if it were intended to be, was void because it was not delivered or, alternatively, was void as vio-lative of the rule against perpetuities. They also asked the court to declare the instrument testamentary in character and, therefore, void because it was not executed in compliance with the statute controlling the execution of wills.

The trial court, after hearing the evidence, entered a decree finding:

That the instrument is a deed;

That the conditions in the instrument are conditions precedent, the performance of which is necessary to vest the title to the property in the plaintiffs and that compliance with those conditions could not be defeated by the defendants’ refusal to accept the sums set out in the instrument and proffered by the plaintiffs;

That the instrument is not void as viola-tive of the rule against perpetuities, in that the conditions to be performed were to be performed by the plaintiffs in their lifetime, or the title would not have vested in them but would have remained vested in the grantors had they failed to perform such conditions. The instrument did not give the right to perform the conditions to anyone other than the plaintiffs and, thus, title must vest, if at all, within their lifetimes; and

That there was a valid delivery of the deed.

The defendants appealed. We affirm.

Whether an instrument is a will or deed is governed by the intention of the maker,' as gathered from the instrument itself. In Marsh v. Rogers, 205 Ala. 106, 87 So. 790 (1920), the parties, attempting to have the instrument declared void, argued that it was testamentary in character, not delivered, and conveyed no present interest. This Court, speaking through Chief Justice Anderson, said of the instrument set out below :

The instrument in question is in form a deed, has every earmark of one, and is unquestionably a deed, and not a testamentary document. There is no effort to postpone the operation of the same until the death of the grantor, and the interest conveyed is not posthumous. [Citations omitted.] The reservation by the grantor of the use and control of the land during her life did not postpone the operation of the deed until her death. [Citation omitted.] On the other hand, the reservation of the use and control of the land during her life negatives an intention on her part to make it a testamentary document. If she meant it as a will, it could not become operative until her death, and the reservation of the use and control of the land during her life was needless .
The intention of the maker is the controlling inquiry, and that intention is to be gathered, primarily, from the language of the instrument itself; but this does not, in case of inapt phraseology, preclude proof of instructions given to the draughtsman, in reference to the nature of the paper he was expected to prepare.

Marsh v. Rogers, supra, pp. 107-108, 87 So., p. 791.

The instrument in this case purports to be a deed, has all of the earmarks of a deed, and the court found that it had been delivered, the only disputed fact. The court correctly applied the law to the undisputed facts and correctly held that the instrument was a deed and was not void as violative of the rule against perpetuities. Thus, the judgment appealed from is affirmed.

AFFIRMED.

TORBERT, C. J., and MADDOX, JONES and BEATTY, JJ., concur.

APPENDIX

DEED

STATE OF ALABAMA

CRENSHAW COUNTY

KNOW ALL MEN BY THESE PRESENTS, that G. W. Dunn and Lucy Dunn, husband and wife, for and in consideration of the sum of One Dollar and love

and affection for our children, to us in hand paid by Nancy Lou Dunn deLaval and Erma Nell Dunn Armbruster, the receipt whereof is hereby acknowledged, do by these presents, and subject to the conditions stated herein, grant, bargain, sell and convey unto the said Nancy Lou Dunn deLaval and Erma Nell Dunn Armbruster, the following described real estate situated in Crenshaw County, Alabama, to-wit:

The NWV4 of SEVi less a strip across the north side thereof for a public road, the SWV4 of SEVi and NEV4 of SE'A, all in Section 20, Township 6, Range 18, containing 120 acres, more or less.

TO HAVE AND TO HOLD the afore-granted premises, subject to the conditions stated herein, unto the said Nancy Lou Dunn deLaval and Erma Nell Dunn Arm-bruster, their heirs and assigns.

The conditions of this conveyance are as follows and upon compliance with the conditions stated herein this deed shall be in full force and effect, otherwise the. same shall be null and void and of no effect:

1. The grantees shall pay to the following named persons, if living, and to their heirs at law if deceased, the following amounts:

$2,000.00 to Jimmie Lucile Weed.
$214.00 to Joy Elaine Weed King.
$214.00 to Judy Lynn Weed.
$428.00 to Marvin Tranum Weed.
$428.00 to Walter Mack Weed.
$428.00 to Mary Lucy Weed Geuder.
$428.00 to Audrey Ruth Weed Liegy.
$428.00 to Sandra Weed Short.
$200.00 to Hershel Lee Dunn.
$200.00 to Flora Rochelle Dunn Mudd.
$200.00 to Sanford Carroll Dunn.
$200.00 to Cubert Kelley.
$200.00 to Margaret Murl Dunn Williams.
$200.00 to Freeman Henderson Dunn.
$200.00 to Ruby Lee Dunn Hudson.
$200.00 to Clyde William Dunn.

Receipts from the above named parties shall be recorded along with this deed and shall be evidence of the compliance with this condition.

2. This deed shall be effective to pass title to the land described herein upon compliance with the conditions named herein, but shall not be effective and title shall not pass otherwise.

3. That portion of the land which is owned by grantor, Lucy Dunn, if rented out during the year of her death, is sold subject to the rent contract and if G. W. Dunn survives the said Lucy Dunn the land shall continue to be rented out each year and the rent money shall be put in Brantley Bank & Trust Company each year during the lifetime of my husband, G. W. Dunn, and out of this rent money the funeral expenses of Lucy Dunn shall be paid, and the balance of the rent money which has been accumulated shall be equally divided among the children of Lucy Dunn, each to share and share alike.

4. Grantors reserve a life estate in their respective lands so long as each of them shall live.

Given under our hands and seals this 1st day of December, 1964.

/s/ G. W. Dunn
G. W. Dunn
/s/ Lucv Dunn
Lucy Dunn
Attest:
/s/ Ben H. Lightfoot
STATE OF ALABAMA
CRENSHAW COUNTY

I, Ben H. Lightfoot, a notary public in and for said county in said state, hereby certify that G. W. Dunn and Lucy Dunn, husband and wife, whose names are signed to the foregoing conveyance, and who are known to me, acknowledged before me on this day that, being informed of the contents of the conveyance, they executed the same voluntarily on the day the same bears date.

Given under my hand and official seal this 1st day of December, 1964.

/s/ Ben H. Lightfoot
Notary public

      . The instrument in its entirety is attached as an appendix to this opinion.

      . “Deed.
      “(Julia J. Marsh to H. H. Marsh.)
      “The State of Alabama, Blount County.
      “Know all men by these presents, that for and in consideration of the love and affection I have for H. H. Marsh and my daughter Florilla Marsh, and the further sum of one dollar, to the undersigned grantor, Julia J. Marsh, in hand paid by H. H. Marsh and Florilla Marsh; the receipt whereof is hereby acknowledged, I do hereby grant, bargain, sell and convey unto the said H. H. Marsh and at his death to Florilla Marsh the following described real estate, to wit: The S.E. 'A of the S.E. ‘A of section 22, T. 12, R. Í west; also about 10 acres in the N.E. ‘A of S.E'. 'A of section 27, T. 12, R. 1 west. It is expressly agreed and understood that I, the said Julia J. Marsh, have and control the above lands during my natural life and at my. death to be used and controlled by the said H. H. Marsh during his natural life and at his death to become the property of my daughter, Florilla, to be used and controlled by her the balance of her natural life. It is understood and agreed that neither H. H. Marsh nor Florilla Marsh have power to sell the above lands, but at the death of the last of us three, the above lands shall belong to my heirs.
      “Situated in Blount county, Alabama.
      “To have and to hold to the said H. H. Marsh and Florilla Marsh as above indicated. And 1 do covenant with the said H. H. Marsh and Florilla Marsh, that I am lawfully seized in fee simple of said premises, that they are free from all incumbrances, and that I have a good right to sell and convey the same as aforesaid.
      “Given under my hand and seal this the 23d day of August, 1909.
      “Julia J. Marsh. [L.S.]
      “-[L.S.]
      “-[L.S.]
      “Witness:
      “E. Harmon.
      “Mrs. M. A. (her X mark) Marsh.”


text:
    Ex parte V. C. Gissendanner SLADE. In re V. C. GISSENDANNER v. Thomas SLADE et al.
    79-374.
    Supreme Court of Alabama.
    May 2, 1980.
    James A. Ward, III, Abbeville, for petitioner.
    Huey D. Mclnish, Dothan, for respondent.
   BEATTY, Justice.

Petition for a writ of mandamus directed to the Honorable Jerry M. White, Judge of the Circuit Court of Henry County. The writ is denied.

To place the matter in its proper perspective the facts of this case must refer to another case which had been actuated by the death of one Simon L. Slade. At the time when Mr. Slade’s body was in the custody of Holman Funeral Home, Abbe-ville, Henry County, one T. R. Slade, alleging that he and another brother were the nearest of kin, petitioned the Henry County Circuit Court to have the body released to him for a proper burial. That petition further alleged that the body had been placed with the funeral home by V. C. Gissendan-ner, the guardian of the deceased, and would not be released by the funeral home without a court order. Accompanying the petition was the affidavit of T. R. Slade, who gave his residence as Talbotton, Georgia, and deposed the relationship referred to above. Based upon that petition and affidavit the trial court, Judge White, entered an order directing the funeral home to release the body of Simon L. Slade to T. R. Slade.

On that same day V. C. Gissendanner filed in the Circuit Court of Henry County her petition for injunctive relief against Thomas Slade (who appears to be the same person as T. R. Slade). This petition alleged that Thomas Slade, a resident of Tal-botton, Georgia, had threatened to remove the body of Simon L. Slade out of Alabama and bury it in Georgia, and that the petitioner, because she was guardian of his estate and his common law wife, was entitled to custody of the body. Allegations of irreparable injury and the absence of a remedy at law were made, followed by a prayer for a temporary restraining order, a temporary injunction and a permanent injunction against removal of the remains from Henry County. The petition was accompanied by several affidavits pertaining to the cohabitation of Simon L. Slade during his lifetime with Virginia C. Gissendanner, stating that they represented themselves “as being common law married by openly assuming mutual duties and obligations with and to each other and to the exclusion of all others.” Bond for costs was posted, and the trial court of Henry County, through the Honorable J. Ronald Storey, Circuit Judge, granted the temporary restraining order.

On the next day, February 22, 1980, this petition for a writ of mandamus to Judge White was filed by V. C. Gissendanner. It referred to the injunction suit described above, alleged the petitioner’s status as common law wife of Simon L. Slade, and averred that she was entitled to the custody of his body. Then it stated that:

[Simultaneously with the filing of the aforementioned cause, the defendant, Thomas Slade, filed a petition entitled EXPARTE [sic]: S. L. [T. R.?] Slade, and therein sought and obtained from the Circuit Court an order directing that the body of S. L. Slade be removed to the State of Georgia.
That by virtue of the Circuit Court’s order directing the body of S. L. Slade to be transported to Georgia, the Circuit Court has abused its discretion and failed to carry forth its duties as required by law which give the spouse of the deceased the right to possession of the body of the deceased upon due assertion thereof.

These allegations were followed by others classifying such action as arbitrary, unreasonable and unjust, depriving the petitioner of her opportunity “to have said action tried upon the merits.”

The answer of the respondent, Judge White, stated that his ex parte order issued on behalf of T. R. Slade was entered before the petition of V. C. Gissendanner was filed and before any temporary restraining order had been granted. He denied any knowledge of a common law wife of S. L. Slade, except the presence of affidavits attached to the petition for the writ of mandamus. He also denied directing that the body of S. L. Slade be removed to Georgia.

In a reply to this answer, this petitioner, Gissendanner, conceded that the two separate proceedings were not filed simultaneously, but insisted that, nevertheless, the petitioner was denied her legal right to her deceased husband’s body without notice or hearing because the ex parte order of Judge White was made by him when, as she charged, he knew that she claimed possession of the body.

It appears that the petitioner in this mandamus proceeding is basing her entitlement on two grounds: (1) that she was found to be the common law wife of S. L. Slade by the Probate Court of Henry County in December, 1979, and (2) that when he issued the ex parte order in favor of T. R. Slade, Judge White knew of that relationship and knew that she claimed the body of S. L. Slade. The petitioner has attached to her brief copies of her petition to the Henry County Probate Court to have herself appointed guardian of the estate of S. L. Slade whom she alleged to be a mental incompetent. That petition did not disclose her relationship to S. L. Slade. However, the probate court’s order appointing her as guardian of that estate concluded that “it further appearing that the said V. C. Gis-sendanner is the common law wife of the said S. L. Slade. . . . ” The petitioner has cited us to two cases which hold, she asserts, that the ore tenus finding of a probate court is presumptively correct: State Dept, of Pensions and Security v. Whitney, Ala.Civ.App., 359 So.2d 810 (1978), and Graves v. Graves, 51 Ala.App; 601, 288 So.2d 142 (1973). Each of those cases involved a petition for adoption. That subject matter is statutorily within the jurisdiction of the probate court, Code of 1975, § 43-4-1, as is the appointment of guardians for mental incompetents, Code of 1975, § 12-13-1. The cited cases are correct as far as they go, but they are inapposite here because they did not address the establishment of a common law marriage, a subject over which the probate court has not been given jurisdiction. § 12-13-1. Hence we cannot consider on the record before us that this petitioner’s claim as common law wife of S. L. Slade has been judicially established.

The writ of mandamus is not granted unless there is a clear showing of error in the trial court to the injury of the petitioner. Ex parte Perusini Const. Co., 242 Ala. 632, 7 So.2d 576 (1942). The petitioner’s right to relief must be clear and there must be no other adequate remedy. Ex parte Edwards, 20 Ala.App. 567, 104 So. 53 (1925). Neither of these prerequisites appears here. Contrary to the petitioner’s insistence, there is nothing to show that Judge White was aware of this petitioner’s claim, as widow, to the body of S. L. Slade when he issued his order to Holman Funeral Home. On the other hand, it is obvious from the record that the petitioner knew of T. R. Slade’s claim to that body because the petitioner went to another and different circuit judge and obtained a temporary restraining order directed to Judge White’s order. The petitioner did not attempt to intervene in the proceeding before Judge White, although she had a clear right to do so. Rule 24, ARCP. Or, the petitioner could have moved for a consolidation of the two cases under Rule 42, ARCP. In any case, the ex parte proceedings before Judge White were, and for aught that appears are, still in the breast of the court. The petitioner could have sought relief in that proceeding by going forward to establish her entitlement to custody of the body, thus giving Judge White an opportunity to rule upon that issue. Cf. Sou. Life & Health Ins. Co. v. Morgan, 21 Ala.App. 5, 10, 105 So. 161 (1925). And see Jordan Undertaking Co. v. Asberry, 230 Ala. 97, 159 So. 683 (1935). Having failed to do so, the petitioner can show no error which offends any clear legal right possessed by the petitioner, nor the absence of another adequate remedy. Ex parte Sykes, 44 Ala.App. 473, 213 So.2d 413 (1968). There is here a complete absence of any showing of an imperative upon the respondent to perform his duty and which he has refused to do. Ex parte Sykes, supra. Accordingly, the petition for the writ of mandamus must be, and is, denied.

WRIT DENIED.

TORBERT, C. J., and MADDOX, JONES and SHORES, JJ., concur.


text:
    Willie Mae DINKINS v. Lillian B. CONYERS et al.
    79-35.
    The Supreme Court of Alabama.
    May 2, 1980.

      Audrey L. Roberts, Huntsville, for appellant.
    H. Kenan Timberlake of Timberlake & Gammons, Huntsville, for appellees.
   SHORES, Justice.

This is an appeal from a judgment entered in the Circuit Court of Madison County wherein the trial court directed the executor of a will to sell lands pursuant to a provision thereof.

The action was initially brought by one of the children of the testator, Thomas F. Con-yers, whose will was admitted to probate in Madison County. Upon the filing of the complaint for sale for division of the lands devised therein, the estate proceedings were removed to the circuit court. The complaint asked for a sale for division, alleging that the complainant and the respondents, her siblings, or in instances where the sibling had predeceased the testator, the children thereof, were tenants in common of the lands involved and that because the lands were not capable of being divided in kind, she was entitled to a sale for division of the proceeds thereof.

The pertinent provision of the will involved is as follows:

ITEM V

I do hereby authorize and direct my Executor to sell all of my real estate and the net proceeds from the sale of said real estate is to be divided into eight (8) equal parts and I give and devise one part to each of my seven children, absolutely and forever in fee simple.

The responding siblings did not deny the allegations of the complaint. A guardian ad litem was appointed to represent the interests of the minor respondents. After a trial ore tenus, the trial court entered a judgment in which it found as follows:

It is further ORDERED, ADJUDGED AND DIRECTED that the defendant Walter Conyers, as Executor of the Last Will and Testament of Thomas Conyers, proceed to sell the real property of Thomas Conyers and distribute the proceeds as directed in said Will. It is further ORDERED and ADJUDGED that said property be sold on or before November 15, 1979, at 5:00 o’clock P.M. It is further ORDERED that in the event the said Walter Conyers, as Executor, fails to comply with this Order of the Court, that said property be sold at public auction on the steps of the Madison County Courthouse to the highest bidder and the proceeds of the sale be divided amongst the heirs of Thomas Conyers as provided by his Last Will and Testament after deduction of the expenses of said sale.

From this judgment, Willie Mae Dinkins, the complainant below, appeals.

It is her contention that the trial court erred to reversal in refusing to order a sale for division as sought by the original complaint. The judgment of the trial court is affirmed on the authority of Warrick v. Woodham, 243 Ala. 585, 11 So.2d 150 (1943). In that case, the provision of the will involved was as follows:

It is my will and I hereby direct that my Executor, hereinafter named, shall sell my plantation in Houston County, Alabama, containing one hundred and eighty-five (185) acres, that lies just outside of the North-west corporate limits of the City of Dothan, Alabama, as soon after my death as practical, provided he-can obtain for the same the sum of Eighteen Thousand ($18000.00) Dollars; but if he cannot obtain the sum of Eighteen Thousand ($18000.00) Dollars for said plantation then I hereby direct' that he hold and lease out said plantation for a period of two years and collect the rents therefrom and said rents shall be paid as follows: After paying taxes on said place to be divided as follows: One-sixth each to my children, Young Warrick, Harry Warrick, Bascomb Warrick, Lillie Mae Woodham and Mary Sue Warrick, and one-eighteenth part thereof to be paid to each of my grandchildren, Charles Pittman, Margaret Pittman and Dolphie Pittman. Should my executor be unable to sell said property for Eighteen Thousand:. ($18000.00) Dollars or more within two years from the date of my death then he shall sell said plantation for the best price he can obtain and execute titles as my Executor to the purchaser of said lands; and when said lands are sold the proceeds thereof shall be divided as follows: One-sixth of the same shall be paid to each of ■ my children, Young Warrick, Harry War-rick, Bascomb Warrick, Lillie Mae Wood-ham and Mary Sue Warrick, and one-eighteenth to be paid to each of my grandchildren, Charles Pittman, Margaret Pittman and Dolphie Pittman' and when said, money is paid to my children .and grandchildren as herein provided, I hereby direct that they shall invest said money in a home, except my minor daughter Mary Sue Warrick and I hereby1' direct that her money arising from the sale of said lands be loaned to some solvent bank and draw interest until she becomes twenty-one years old. [Warrick, p. 589, 11 So.2d, pp. 152-153] .

Thereafter one of the testator’s children brought a bill for sale for division of the lands and also sought a construction of the will. This Court, speaking through Justice Lawson, held that the bill for sale for division could not be maintained because:

We are of the opinion that there was a conversion of the lands into money' at the date of the death of the testator and that, therefore, the complainants, under the allegations of the bill, cannot maintain a suit for a sale of the lands for division. It follows, therefore, that the trial court correctly sustained respondents’ demurrer to that aspect of the bill which sought to have the land sold for division. [Warrick, p. 592, 11 So.2d, p. 156]

. The Court in Warrick stated the rule as follows:

The rule is well established that where lands are expressly directed to be sold by the provisions of a will, and the proceeds distributed among persons designated, the land must be considered as having been converted thereby into personalty and no suit for partition of the lands can be maintained. Snow v. City Nat. Bank of Tuscaloosa, 240 Ala. 408, 199 So. 818; Gaddy v. Mullens et al., 215 Ala. 664, 112 So. 133; Greer v. Herren, 146 Ala. 640, 41 So. 783; Bank of Ukiah v. Rice, 143 Cal. 265, 76 P. 1020,101 Am.St.Rep. 118; John v. Turner, 121 W.Va. 447, 6 S.E.2d 480, 124 A.L.R. 1444; 47 Corpus Juris 318; 40 AmerJuris. 9. Where a will requires a conversion, by sale, of real estate into personalty, the conversion occurs as of the date of the testator’s death, notwithstanding the fact that the actual change in the form of the property may not take place immediately. [Warrick, p. 591, 11 So.2d, p. 154]

We are persuaded that the trial court correctly construed the will of the testator in this case and correctly directed the sale of the property pursuant to the terms of the will. In this instance, it is of no real significance, insofar as the outcome is concerned, that the trial court ordered the sale under the provisions of the will as opposed to under the prayer of the complaint, the results in either case being the same. The only difference is that, as the complainant on appeal all but acknowledges, had she prevailed in her efforts to have the land sold for division, she would have been entitled to attorney’s fees, which the court denied her in this instance. No fund having been established at the instance of the complainant, we find no error to reverse here.

Nor are we persuaded by the argument made that actions of the parties had in some manner reconverted the property back into its original form, i. e., real estate.

Finding no error to reverse, we affirm the judgment of the trial court.

AFFIRMED.

TORBERT, C. J., and MADDOX, JONES and BEATTY, JJ., concur.


author: BRADLEY, Judge.

text:
    James S. FIELD v. Annie M. FIELD.
    Civ. 1996, Civ. 1996-A.
    Court of Civil Appeals of Alabama.
    March 19, 1980.
    Rehearing Denied April 23, 1980.

      Alice L. Anderson, Chancellor, for appellant.
    Robert H. Brogden, of Brogden & Quatt-lebaum, Ozark, for appellee.
   BRADLEY, Judge.

This is an appeal from denial of a father’s petition for modification of child custody. We affirm.

The parties divorced in 1974. The mother was granted custody of two children, one born of the marriage and one born to the mother in a previous marriage. The father instituted an action for change of custody in 1975 which was denied. He remarried in 1975. In 1977 the parties entered into a consent decree which expanded the visitation rights of the father.

The instant appeal is a result of a second petition for change of custody. In 1978 the father filed this petition for change of custody of the child born of the marriage, alleging that the mother had moved from the state and was frustrating his right of visitation. On November 7, 1978 the trial court, ex parte, granted the husband temporary custody pending a hearing on the petition. On May 31, 1979 the trial court ruled that the petition for modification should be denied, with the wife to post a $1,000 bond to insure that she obey all orders of the court regarding visitation rights, and the wife was granted permanent custody of the child. On May 31, 1979 the father filed a motion “to fix supersedeas bond or motion for stay of judgment,” which was denied on June 21, 1979; the father filed notice of appeal from this action on July 7, 1979. The father also filed a motion for new trial on June 13, 1979; it was deemed denied by ARCP 59.1, and the father filed notice of appeal on September 24, 1979. The father sought and was granted consolidation of both appeals.

The father’s first issue is whether the trial court erred in denying his request that the court set an appropriate supersedeas bond to retain temporary custody in him during the pendency of the appeal or, in the alternative, enter a stay of the judgment.

He argues that the denial of the superse-deas bond was an appealable order, citing Piccolo v. Piccolo, 251 Ala. 483, 38 So.2d 12 (1948). The mother contends that this issue is not properly before the court on either of two theories: first, the trial court has no authority to set a supersedeas bond under Piccolo and that a motion under ARCP 62(g) should have been filed with this court; second, if the trial court had authority to grant a supersedeas bond under ARAP 8(a), the husband pursued the wrong remedy by taking an appeal from the denial rather than by motion under ARAP 8(b).

The trial court did not have authority to set a supersedeas bond which would supersede the custodial order. Sandlin v. Sandlin, 265 Ala. 531, 92 So.2d 893 (1957); Ex parte Wright, 225 Ala. 220, 142 So. 672 (1932). In Sandlin the supreme court stated:

It is the settled law of this State that an appeal by the unsuccessful party from a decree awarding the custody of minor children does not supersede that decree, whether or not a supersedeas bond in form may have been given, although this Court has capacity to make an order for the custody of the child or children pending such appeal. [Emphasis added.]

In child custody cases the proper procedure for superseding the trial court judgment is to file a motion for stay with the trial court and, if it is denied there, file a motion for stay of judgment with the proper appellate court. Piccolo v. Piccolo, supra; ARCP Rule 62(g); ARAP Rule 8(b).

We recognize that Rule 8(a), ARAP, authorizes an appellant to supersede a judgment on appeal by the filing of a supersede-as bond with the trial court but only where the judgment is for the payment of money, performance of some other act or duty, or for the recovery or sale of property or possession thereof. See 8(a), ARAP. However, child custody decrees are not in the category of judgments authorized to be superseded by a supersedeas bond. Piccolo v. Piccolo, supra; Sandlin v. Sandlin, supra. And, of course, the request by appellant was for permission to file a supersedeas bond to stay the child custody award. The trial court was correct in refusing to permit the filing of a supersedeas bond.

Appellant also requested the trial court to stay the award of custody to the wife pending the appeal. This request was also denied.

Where a stay of judgment request in a child custody case pending an appeal is denied by the trial court, the next step is for that party to file a motion for stay of judgment in the appellate court to which the appeal has been taken. Rule 8(b), ARAP. That was not done in the instant case. The proper procedure for obtaining a stay of the child custody award pending appeal not having been followed, appellant’s complaint cannot be considered.

The second issue is whether the trial court erred in not granting the motion for new trial. The husband asserts several grounds. First, the husband asserts the trial court abused its discretion in denying change of custody. The trial court’s ruling falls within the test of Alford v. Alford, Ala.Civ.App., 368 So.2d 295 (1979):

There is a presumption of correctness which accompanies the judgment of the trial court in every case upon review where the evidence was presented orally before the court. There is also a rule of repose applicable to a petition to modify a prior judgment as to custody of a child. To overcome both the presumption of correctness and the rule of repose there must be evidence of a material change in circumstances occurring since the last judgment so affecting the best interest and welfare of the child as to disclose an obvious and overwhelming necessity for change. The judgment entered by the court must be so unsupported by or contrary to the evidence as to be clearly an abuse of the court’s judicial discretion and thus palpably wrong and unjust. [Citations omitted.]

Having reviewed the testimony, we fail to find the evidence of a material change of circumstances since the last judgment affecting the best interests and welfare of the child such as to disclose an obvious- and overwhelming necessity for change. The husband has presented admissible evidence of his good reputation and concern for his child; likewise, the mother presented evidence of her industry and love for the child. The trial court recognized both parents’ love for the child, but expressly found the best interests of the daughter dictate that she remain in the custody of the mother.

Second, husband asserts that the law was unconstitutionally applied, thus denying appellant equal protection and due process of law. In support of this proposition, the husband relies on Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). We have no quarrel with Stanley, it is simply inapposite. In Stanley the court was faced with “a dependency statute that empowers state officials to circumvent neglect proceedings on the theory that an. unwed father is not a ‘parent’ whose existing relationship with his children must be considered.” (Footnote omitted.) Here, we are faced with a change of custody proceeding, stemming from an earlier divorce proceeding where a court adjudicated the issue of primary parental custody with the father’s interest always before the court both at the hearing on the divorce and on the subsequent petitions to modify.

As to equal protection, the case law is to the effect that a violation occurs only when state action is without any reasonable basis and is arbitrary. Baker v. Baxley, Ala., 348 So.2d 468 (1977). Any challenge to the original custody must have come by way of appeal from that judgment. Due process requires that an aggrieved party be given the opportunity to adjudicate his claims. Kirkland v. State, Ala.Civ.App.,. 340 So.2d 1121 (1976). The husband was given this opportunity at the hearing on the petition for change of custody.

Hence, we cannot find where appellant’s constitutional rights have been violated at any point. This is not to say that the husband is not a fit and proper person to raise the children. It is to say that we cannot hold that the trial court abused its discretion in retaining custody in the mother. Alford v. Alford, supra.

The husband raises other issues in (a) a supplemental brief, and (b) the reply brief. We pretermit these issues as not properly before the court. This court did grant the husband’s motion to supplement his argument on his ground that the fifty page limit for argument was not adequate to present some essential facts. However, the husband’s sole ground was to present essential facts, not add additional issues. The reply brief is to respond to the argument of appellee, not raise new issues. ARAP 28(c). Therefore, these additional issues will not be addressed.

The trial court’s judgment is affirmed.

AFFIRMED.

WRIGHT, P. J., concurs.

HOLMES, J., concurs in the result.