The prevailing opinion on rehearing asserts: "The holding of the original opinion that the pleas in abatement filed by the minors were insufficient is rested upon a construction of the final decree rendered in the Barbour County Circuit Court in Equity by way of settlement of the litigation therein pending which reached this court in Badham v. Johnston, 239 Ala. 48,193 So. 420. Stress was laid upon that part of the decree confirming the settlement between the parties, wherein it was stated that all claims of said minors or on their behalf, filed or unfiled by them, or for them by trustee or guardian, against the estate of Leila J. Badham, were cancelled, satisfied, and discharged and released in full, and the executor discharged from liability therefor. The conclusion was therefore reached that, by this language, all interest of the minors in the residuary estate of the testatrix, as provided for in the will, was surrendered, and that as a consequence the minors had no further interest in such estate."
This is clearly a misinterpretation of the original opinion. We quote from that opinion which points out the defects in the pleas: "None of the pleas filed by said minors disclose with sufficient certainty the purpose and scope of the bill filed in the circuit court of Barbour County, and the decree attached to and made a part of one of said pleas shows that jurisdiction in that case was retained by the circuit court of Barbour County for the limited purpose of a settlement of the ancillary administration by the executor, and for enforcement of the settlement between the parties. The interest of said minors in such settlement [mark you, not the estate] is determined and concluded against them by said final decree. Taking as true the allegations of plea 1, yet construing them most strongly against the pleader, said settlement approved by the court between the parties was intended and did conclude and bar said minors from any contingent interest in the residuary estate under the will of Leila J. Badham, deceased.
"The ancillary administration relates only to personal assets within the jurisdiction. [Citing authorities.]" — [Brackets supplied.]
The decree as a whole dealt with not only claims filed and unfiled by the minors, but also with the ownership and title to the property which constituted a part of the trust. The interest of Leila B. Johnston in the store property in Eufaula was converted by that decree, contrary to the provisions and purpose of the will, into a vested interest and title in fee in Leila Badham Johnston and William Young Johnston, jointly, reserving to the cestui *Page 631 que trust Vernon C. Badham the right to the rents and incomes therefrom during his lifetime.
The pleas do not show upon what consideration this interest in the property was converted into a vested interest in said executory devisees.
Said decree also ordered the trustee to execute a quit claim deed to Lila Johnston to the land referred to in the complaint as the Georgia property in Randolph and Quitman Counties, Georgia. This was property that came to Vernon C. Badham under the will of his wife, executed and probated in the State of Georgia. The pleas fail to show upon what consideration this was done.
Much stress is laid in the prevailing opinion on rehearing as to the disposition of "Westover or the Williams Place," and stress is laid upon the provisions of the settlement in the decree "which property or proceeds thereof shall be held by him under the terms and for the purposes expressed in said will, and also for the payment of such obligations against the trust property as this decree may declare." The said Lila Johnston, individually, and as guardian of the minors was ordered by the decree to execute a statutory warranty deed to such trustee William T. Badham to such property. Why the necessity for such conveyance if it was not to release and determine the contingent interests of said minors in said property and the claim of said Lila Johnston. On this subject the pleas are silent.
Another defect in the pleas is they fail to show that there are any personal assets of the estate in this jurisdiction subject to said ancillary administration.
Another fault of the prevailing opinion is that it ignores the well settled rule of equity pleading, that in determining the sufficiency of said pleas, the averments of the pleas are to be construed most strongly against the pleader. Said opinion aids the pleas by admissions in argument not embodied in the pleas, and, by construing it most favorably to the pleader and not against him.
The tragedy of the situation is the chief beneficiary of the trust is the forgotten man. He seeks nothing in his bill except additional support. There should be some power somewhere to give him relief before the candle which is burning low is extinguished.
THOMAS and BROWN, JJ., adhere to the pronouncements in the original opinion.