As against the general demurrer to the bill as last amended, that pleading contained equity.
Trusts are creatures of courts of equity and are enforceable in such tribunals (Heflin v. Heflin, 208 Ala. 69, 93 So. 719; Cawthon v. Jones [Ala. Sup.] 113 So. 2311), and a court of equity may be resorted to when necessary to a right administration of an estate. The books show a frequent application of such principles: Yarbrough v. Yarbrough,200 Ala. 184, 75 So. 932, for the assignment of dower; Evans v. Evans, 213 Ala. 265, 104 So. 515, for setting apart a homestead, the administration having been closed; Evans v. Evans, 200 Ala. 329, 76 So. 95, following trust property; Kennedy v. First National Bank of Tuscaloosa, 107 Ala. 170,18 So. 396, 36 L.R.A. 308, for the claim of exemption against sale under legal process; Long v. Brown, 206 Ala. 154,89 So. 614, was the determination that the widow and minor children under the statute took the absolute estate in the property. Section 7920, Code of 1923; Faircloth v. Carroll, 137 Ala. 243,34 So. 182.
As amended, the bill asserted the right of homestead and exemptions by complainant as widow, a resulting trust or title to land averred by operation of law, was sought to be enforced by her as that beneficiary, and facts indicating that she has no adequate remedy at law to uncover the title and ascertain and disclose her right, title or interest therein. All this the general demurrer admits. City of Birmingham v. L. N. R. Co. (Ala. Sup.) 112 So. 742.2 The bill treated as well pleaded, there was error to sustain the general demurrer thereto.
The amendment eliminated the question of insolvency vel non introduced in the original bill; the right is rested by the complainant's last pleading upon the fact that she was the surviving widow of the decedent who left no minor children, and no other property than that set out in the bill, which did not exceed the homestead and exemption allowed by law, and the widow had no separate estate of her own.
The special demurrer challenges the averments of the bill to bring it within the exception as to writings (section 6917 of the Code) as being a trust "such as results by implication or construction of law, or which may be transferred or extinguished by operation of law." The averments are the transaction set up by the facts, indicated the passing of possession to the cestui que trust after purchase, the indicia of ownership to the beneficiary in the alleged trust, and that the intestate and complainant as wife and widow enjoyed the same as owner. Code, § 8034, subd. 5; Willard v. Sturkie,213 Ala. 609, 105 So. 800.
The trust declared arose out of the acts of the parties; the purchase money and the possession was that of the cestui que trust. The pleader was required only to declare the facts, and the statute determined the trust relations. The special demurrer challenging the bill as setting up a parol trust without the statute was not well taken.
The ground of demurrer that the facts averred show the existence of an adequate remedy at law will not sustain the decree. Articles 1 and 2 of chapter 292 deal with exemptions from levy and sale under process, and claims and contest of exemptions, and the waiver thereof is the subject of article 5. Article 4 deals with the setting apart of exemptions to the widow and minor children. There is no authority whereby the probate court may determine, adjudge, and decree the nature and extent of title to lands subject to such trust and held as it is averred, by a third person, vests in the widow and minor children and so shape the due conveyance thereof. Volume 3, Code, p. 858 et seq.
When the several paragraphs of the bill are considered it is sufficiently charged that complainant's husband (the decedent) delivered a sufficient sum of money, "about $2,000.00," and with which to purchase the lands indicated, that the same money was so used and the land was so purchased therewith, that the title taken in Wheeler (a respondent), who acted in that behalf for said decedent, and that said Wheeler, holding under the title so taken to the trust estate, refuses to execute a conveyance to complainant holding possession from 1915 to 1924. The averred facts make no case of a loan, but that of the investment of trust funds in lands, the title to which is taken in another than the cestui que trustent and which in equity belongs to the latter under the law as exempt property of said decedent. And grounds of demurrer asserting a loan or non-existence of trust estate are not well founded.
The demurrer fails to disclose insufficiency of the description employed in the bill as amended. The latter pleading rendered a specific description employed in the bill as originally filed.
The original bill contained a footnote requiring full answer of each and every paragraph. The amendment made definite the lands sued for and the issues of fact presented; it was not original in form, but supplementary to the context of the bill as originally filed; though the amendments were without footnote and would appear to be upon separate sheets of paper, there was no attempt to change the original prayer of the bill. The footnote to the original bill thus amended was sufficient as compliance with the rule having application and the declared effect of a footnote. Chancery Rules 11 and 12. The original and amendments to the bill *Page 114 constitute one suit, as the forms and context indicate. Winter v. Quarles, 43 Ala. 692.
The cause should be tried upon full pleading and proof. The decree of the circuit court, in equity, sustaining "demurrer to the original bill as last amended," is reversed, and the cause is remanded.
Reversed and remanded.
ANDERSON, C. J., and SOMERVILLE and BROWN, JJ., concur.
2 216 Ala. 178.