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203 Ala. 279

82 So 529

Davis v. Lambert

Supreme Court of Alabama

Decided June 26, 1919

Supreme Court of Alabama · decided 1919-06-26

Bill by Vitus Lambert against J. M. Davis and another to construe the will of Jeremia Davis. From the decree, respondents appeal. After directing that his estate be divided into two equal parts, without specifying how or by whom, and giving and devising one part to his married daughter and one part to his son, then under age, with conditional limitations in each case, the will proceeds as follows: Item 5.

Relies on Mullanny v. Nangle · Hinson v. Williamson · Scholl v. Olmstead

Affirmed · Decided 1919-06-26

SOMERVILLE, J.

¶1 We think the decree of the circuit court is based upon a correct construction of the will in question. Tilley, as Guardian, v. Letcher, Adm’x,. 82 South. 527; 1 Hinson v. Williamson, 74 Ala. 180; Boland v. Tiernay, 118 Iowa, 59, 64, 91 N. W. 836; Scholl v. Olmstead, 84 Ga. 693, 11 S. E. 541; Mullanny v. Nangle, 212 Ill. 247, 72 N. E. 385.

¶2 [1] The right to execute a personal trust, not being attached to the office of executor, though vested in the person so named, is not dependent upon that office, and is not lost by the donee’s discharge as executor.

¶3 [2] Inasmuch as the exercise of the discretionary power granted by item 5 of the will, viz., to sell the property devised to Mrs. Lasseter for reinvestment, is dependent upon a prior division of the estate, as directed in item 3, it is clear that, if a division is not otherwise effected by the devisees, the trustee, Lambert, would be authorized to institute proceedings in a proper forum for that purpose.

¶4 Let the decree of the circuit court be affirmed, with the addendum just above noted.

¶5 Affirmed.

ANDERSON, O. J., and MAXEIELD and THOMAS, JJ., concur.
1

¶6 Ante, p. 277.

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