Opinion
6 Div. 81.
May 10, 1928. Rehearing Denied June 7, 1928.
Appeal from Circuit Court, Jefferson County; William M. Walker, Judge.
John C. Carmichael and Crampton Harris, both of Birmingham, for appellant.
Every bill in equity must affirmatively show by clear and unambiguous averments the complainants' right, title, and interest in and to the subject-matter of the suit. Seals v. Robinson, 75 Ala. 363; Lake v. Security Loan Asso., 72 Ala. 207; Land v. Cowan, 19 Ala. 297; Rapier v. Gulf City Paper Co., 64 Ala. 330. It is also essential that the bill set forth the injuries to complainants' rights, done or threatened by respondent. Duckworth v. Duckworth, 35 Ala. 70.
Windham Countryman, of Birmingham, for appellees.
It is not necessary, in a bill charging fraud by undue influence, to set forth clearly the facts constituting the fraud, where it is alleged that the person upon whom the fraud was practiced was in a weak mental state. Powe v. Payne, 208 Ala. 527, 94 So. 587; Cox v. Parker, 212 Ala. 35, 101 So. 657.
It is a well-settled rule of equity pleading that a bill of complaint must show by clear and unambiguous averments the complainant's right, title, or interest in and to the subject-matter of the suit. Seals v. Robinson Co., 75 Ala. 363; Lake v. Security Loan Association, 72 Ala. 207. The present bill as amended contains paragraph 4, which avers that the decedent executed a will disposing of her property, including the real estate in controversy, February 1, 1927. It does not therefore appear to whom the property was devised, or whether or not the present complainants derived any right or title under the will. If the will was valid, and it is not assailed by the bill, the testatrix may have willed the property in question to some one other than the complainants, and, if such was the case, they had no interest in the property, as they could not take by inheritance unless the decedent died intestate as to the property by controversy. True, in the amendment to paragraph 6 of the bill, it is averred that "orators are entitled to inherit their distributive share in said property under and by virtue of the law of descent and distribution." This is not only a mere conclusion, but is inconsistent with and contradictory of the paragraph charging that the decedent made a will February 1, 1927.
While the bill could have well charged undue influence as a conclusion, yet it attempts to set up the facts or details constituting same, and, from aught appearing, the grantor's wishes as to the property may not have been changed. In other words, she may have wanted Myrtle Bond to have it and may have devised it to her in the will.
The trial court erred in overruling the demurrer to the bill as amended, and the decree of the circuit court is reversed, and the cause is remanded.
Reversed and remanded.
SOMERVILLE, THOMAS, and BROWN, JJ., concur.