Erzsebet (Fleischner) Dezso and others (appellees), next of kin of Margaret Hermine Pilcher, deceased, filed their bill to set aside a certain deed executed by Frank Pilcher, her surviving husband and executor of her last will and testament, and to have the real estate embraced in the deed sold for division among the next of kin as remaindermen of her estate. Copy of the will is attached to the bill as an exhibit and made a part thereof. The pertinent provisions of the will will be set out later in this opinion. There is also attached to the bill as an exhibit and made a part thereof the deed to which reference has been made. The court overruled the demurrer to the bill filed by Mary Lou Pilcher (appellant) and from that decree she brings this appeal.
The appellant bases her right to reversal on two theories, (1) that "it affirmatively appears from the bill that the complainants are enemy aliens of the United States of America and as such have no legal or equitable standing in this court and no legal or equitable right to bring this suit" and (2) that "under the terms and provisions of the will Frank Pilcher, the husband of testatrix and the executor of her last will and testament, was given the absolute power of disposition of the property involved without the necessity of any court order and this power was not limited to the necessities for his support, comfort and well-being."
I. It is the theory of the appellant that the bill shows on its face that since the appellees, who filed the bill, are residents of the country of Hungary and, therefore, reside in a satellite state of the Soviet Group, the complainants should not be allowed to prosecute their suit in the courts of Alabama. In § 1, Title 47, Code of 1940, it is expressly provided that an alien, resident or nonresident, may take and hold real property in this state. It is insisted, however, that since the complainants are residents of a country engaged in what is termed a "cold war" with this country, the statute does not apply and the present suit should be abated. We are entirely in sympathy with the idea that property located in this state should not be transferred to residents of the country of Hungary so as to aid Hungary in its efforts with the other Soviet countries to injure this country in its economic or material resources and to overthrow the government of the United States through the teachings of the International Communist Party. Our cases hold that the courts of this state will not allow an alien enemy to obtain a judgment in the courts of this state because he thereby adds to the resources of the power of which he is a subject. Lutz v. Van Heynigen Brokerage Co., 202 Ala. 234, 80 So. 72.
There is a difference between allowing the appellees to attempt to establish their title to land in this state and allowing the proceeds of land sold for division to be distributed to residents of Hungary. It is the distribution of such proceeds which should be safeguarded.
We do not feel that the allegations of the bill as against demurrer show any reason for abatement of the suit. The propriety of distribution of proceeds of the sale of the land, if any, should be determined when the case reaches that stage, if it ever does. There may be the danger that if distributive shares of the estate should be turned over to residents of Hungary the government of Hungary would confiscate the same and not only would the intention of the testatrix be thwarted but the government of Hungary thereby aided.
The State of Pennsylvania like this state has no statute covering the present situation. But in Pennsylvania the courts have impounded funds of aliens behind the Iron Curtain without benefit of legislation on the theory that it is the duty of the court to see to it that money in the hands of the court reaches the true owner and is not diverted
We understand that the practice of impounding distributive shares belonging to persons behind the Iron Curtain is now also in effect without legislation in Massachusetts, Michigan, Missouri, Nebraska and Vermont. Southern California Law Review, Vol. 25, No. 3, p. 313. We are not, however, aware of any decision by the courts of last resort in the foregoing states approving or disapproving the practice.
Accordingly in the instant case the court acted correctly in overruling the demurrer and in holding that the bill did not show on its face that the suit should be abated.
II. The deed executed by Frank Pilcher as surviving husband and executor of the last will and testament of Margaret Hermine Pilcher was executed pursuant to the following pertinent provisions of the will:
The appellant is claiming the property involved under the deed to which we have referred, while the appellees are claiming that the deed is void and that as remaindermen they are the owners of the property. The life tenant, Frank Pilcher, is dead. Primarily this litigation is to recover the estate of remaindermen after the death of the life tenant. Winn v. Winn, 242 Ala. 324, 6 So.2d 401. Obviously to accomplish this result the deed must be set aside. Williams v. Spears, 235 Ala. 611, 180 So. 266.
There is a good deal of discussion in briefs as to the extent of the powers granted to Frank Pilcher under the will, it being contended by appellant that under the doctrine enunciated in Cain v. Cain, 127 Ala. 440, 29 So. 846, 847, the power conferred on Frank Pilcher cannot be narrowly confined to the purposes of sale expressed in the will. In that case the court said, "We hold that, though the power is expressed to be for a purpose, its exercise is bounded only by the donee's judgment and discretion in fulfilling that purpose, and that her discretion is not subject to be controlled by the courts." Cain v. Cain, supra.
But there is a point beyond which the donee of the power cannot go in the execution of the power. In Burton v. Jones, 212 Ala. 353, 102 So. 807, 808, the executor was given the power of sale "`with or without an order of court, as he may think best to the interest of the estate.'" The court said, "From this it results that he was given a discretion as to whether a sale should be made, and his judgment was conclusive if exercised in good faith. * * * His exercise of the power will be interfered with only for fraud or manifest abuse of discretion, neither of which is averred or proved in this case." See also Winn v. Winn, supra; Fillmore v. Yarbrough, 246 Ala. 375, 20 So.2d 792; Yockers v. Hackmeyer, 203 Ala. 621, 84 So. 709.
This brings us to the allegations in the instant bill which we, of course, assume to be true on demurrer. They show bad faith and fraud, participated in by Mary Lou Pilcher, the grantee in the deed, and the appellant here. The allegations of the bill show that Frank Pilcher conveyed the real estate to his sister Mary Lou Pilcher within a few days after the death of the testatrix and without consideration. It is alleged that Frank Pilcher was not at the time such conveyance was executed in need and that he had sufficient assets and money of his own with which to provide
It is further alleged that on a determination by this court that Frank Pilcher was without authority and power to execute the conveyance to Mary Lou Pilcher and that the same is void, the land should be sold so that there may be a division of the proceeds between the next of kin and that the property cannot be equitably divided without a sale thereof.
The court acted correctly in overruling the demurrer to the bill of complaint. The rights of the parties with reference to the deed and a sale for division should be determined after proof is taken on the issues made by bill and answer. Betts v. Betts, 250 Ala. 479, 35 So.2d 91; Grisham v. Grisham, 251 Ala. 340, 37 So.2d 177; Fillmore v. Yarbrough, supra.
In view of the foregoing the decree of the court overruling the demurrer to the bill of complaint is due to be affirmed.
LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur, except that LAWSON and MERRILL, JJ., concur only in the result as to that phase of the opinion dealing with abatement of the suit.