26 Ala. 360 | Ala. | 1855
— The leading object in the construction of every written instrument is, to arrive at the true intent and meaning of the parties to it; and if the courts can give effect to such intention consistently'with the rules of law, they will do so. In the construction of wills, especially, we must struggle to arrive at the true desire and intent of the testator; and to do this, we should look to the whole instrument — the introduction, preamble, and different items and clauses, and see the bearing of each upon the clause to be construed. At the same time, however, the words of the devising clause cannot be ordinarily carried beyond their just legal import and legitimate -meaning, by any supposed general intent to be gathered from the introductory clause or preamble of the will. 1 Roberts on Wills, pp. 432-5. It is only in cases of doubt, where the words of a bequest may be construed more ways than one, without doing violence to the apparent intent and the rules of law, that we resort to the introductory part of the will for the purpose of aid in solving such doubt—19 Penn. 87; ib. 513.
We are of opinion, that in the introductory clause of this will there is nothing inconsistent with the possibility of a reversion back to the estate of the testator of the property mentioned in the eighth clause of the will. The language is: “I, Jethro Denson, being”, &c., “and desirous of leaving this will”, &c., “desire that my person and property shall, after my death, be disposed of as follows, to-wit.” Then follow the several clauses, seven in numbex-, making dispositions of portions of his property among, his children, vesting life estates in his daughters, with remainders to the heirs of their bodies living at their death, until we come to the eighth, which is the clause we are called upon to constrae, and which is in these words : “ I will and bequeath to my wife Rebecca my negro woman known as Little Perriby, and her children and grand-children, with the exception of her daughter Nancy. I further will and bequeath to. my wife Rebecca negro man George ; also a woman known as Big Perriby, and her three youngest children; also, two negro men, Cupid and Jack; also, a woman known ¿s Old Nancy, and all of my household and kitchen furniture; also, fifteen head of stock cattle, five head of hoi’ses, one road wagon, and all of my stock of hogs, plan»
Taking a common-sense yiew of this bequest, it would readily occur to the mind, that if the testator intended to vest the absolute property in his wife, he would hayo given it to her as he did other property to his sons. But he does not do so : when he comes to make provision for her, he expressly limits her interest to a life estate; and to hold that the absolute property passes in the chattels, is to do violence to the testator’s language, and, wo think, -would contravene his clearly expressed intention.
The superadded right to dispose of the property at her death, at her own will and pleasure, we think, has not the effect of enlarging the precedent gift for life so as to vest the absolute property. Taking the whole will together, and bearing in mind the language employed by the testator when he would create or vest an absolute property, and the peculiar and guarded manner in which this bequest is expressed, we do not entertain a doubt that the testator meant what he said — to give his wife but a life estate, and to vest her with power and authority to dispose of the remainder ; and, perhaps reposing with confidence upon the belief that she would execute the power of disposition, he makes no provision as to what shall be done with the remainder in default of appointment. In that event, it goes back to his personal representatives, to be administered as in case of intestacy.
The authorities, botli English and American, seem generally agreed in the position, that an express estate for life, given by will, negatives the intention to give the absolute property, and converts words conferring a right of disposition into words of mere power. Sec the authorities, collated with much industry, upon the briefs of the learned counsel.
The case of Randall v. Shrader, 20 Ala. 338, which arose upon an ante-nuptial contract, was a correct decision ; for the husband, by the contract, effectually excluded his marital rights from attaching to the property. True, the reasoning puts the decision upon another ground, and this would seem to conflict with the views above expressed, unless a distinction can be taken between the construction of the clause author
After a careful examination of all the authorities cited, and many which are not found on the briefs, we feel constrained to hold, that the decree of the chancellor is erroneous, and his decree must therefore be reversed, and the cause remanded.
