Bethea v. Bethea
116 Ala. 265
Ala.
1896
Check Treatment
HARALSON, J.

1. The main question in this case is, whether the children of Henry, Alfred and Andrew J., — the latter being the sons of the testator, T. B. Bethea, — took under the second clause of the will per stirpes or per capita. Mr. Jarman says on this subject, “Where a gift is to the children of several persons, whether it be to the children of A. and B., or to the children of A. and the children of B., they take per capita and not per stirpes. ” — 2 Jar. on Wills, (6th ed.), p. 205, *p. 1051, § XII. In the notes to the text, several illustrations, and the cases to sustain them, of the correctness of this rule, are given. The annotator,' referring to the case of Henry v. Thomas, 118 Ind. 23, says : “The per capita rule, it is rather strongly declared in this case, has been so departed from, that it has no longer any practical force, the weight of authority being that the beneficiaries take per stirpes unless a contrary intention appears;” citing cases to sustain this view, from Pennsylvania, New York, Maryland and Tennessee. Mr. Jarman, himself, in respect to the rule he states, says : “But this mode of construction will yield to a very faint glimpse of a different intention in the context,” — to sustain which exception, many adjudications are cited in the notes. This court, in Smith v. Ashurst, 34 Ala. 208, recognized the doctrine stated by Jarman and its modification on faint evidence, in the context, of a different intention by the testator. In the will before us, as to the bonds in'question, the testator provided, “and after her death [Eugenia V. Bethea, his wife, to whom he gave a life estate in the bonds] I give, devise and bequeath the same to my three sons, Henry, Alfred and Andrew J., during the terms of their natural lives, and then, to the children that each may have surviving them.” The word each as here employed, is clearly distributive of the grand-children of the testator referred to, into classes or stirpes, indicating his intention for them to take in this manner, and not per capita.

*2712. The law inclines to regard legacies as vested, rather than contingent, and the rule is applied when the intention is obscure or doubtful. Of course, when the intention is plain, it has no application. — Travis v. Morrison, 28 Ala. 498.

In the clause of the will we construe, time of division or payment of the legacies is not of the substance of the gift. ' It is mentioned only as a qualifying clause of the payment or division, — the gift being absolute as to the classes named, at a certain time in the future, — the whole of the intermediate interest having been given, first to the .widow of the testator during life, and to his said three sons for life after her death. The estate, thus given to said classes, per stirpes, was not limited upon a dubious and uncertain person, or upon the happening of a dubious and uncertain event. It was absolute in form, to definite classes at a certain time. By all the tests, the legacies were vested. — Nix v. Robbins, 24 Ala. 670; Cox v. McKinney, 32 Ala. 461; High v. Worley, 32 Ala. 712; Thrasher v. Ingram, 32 Ala 646; Wynne v. Walthall, 37 Ala. 42; Phinizy v. Foster, 90 Ala. 264; 20 Am. & Eng. Encyc. Law, 838.

3. Formerly the rule was, that a remainderman could in all cases apply to a court of equity, to obtain security from the party who held the life estate, that the property should be delivered to him when he became entitled to the possession, without showing either waste or danger of waste. This rule has been abandoned in England and this country, and in order to obtain such relief, the remainderman must now show danger to his interest. Justice Story states the rule to be, thfit in all cases “where there is a future right of enjoyment of personal property, courts of equity will now interpose and grant relief upon a bill quia timet, where there is any danger of loss or deterioration, or injury to it 'in the hands of the party who is entitled to the present possession." — 2 Story Eq., § 845; James v. Scott, 9 Ala. 579; Lewis v. Hudson, 6 Ala. 463; Nance v. Cox, 16 Ala. 129; Lyde v. Taylor, 17 Ala. 270; Ramey v. Green, 18 Ala. 771.

That the allegations of the bill are full and sufficient to show danger of loss and injury to the inheritance in the hands of the defendant, Henry Bethea, is not questioned on demurrer, and is not open to dispute.

*2724. The plea filed by the defendant, Eugenia Y. Bethea, in bar of this action, sets up the fact that the complainants, on the 4th February, 1890, had borrowed $1,000 of the $19,000 fund, from the defendant, Mrs. Bethea, for which they gave their receipt, promising to return the same in twelve months from date, with the interest added; that they still owe this money, and they are, therefore, barred from maintaining this bill to have the balance of the fund secured, not having offered to do equity by returning the money borrowed. The chancellor was of the opinion, as he expressed it, “that there is no such relation between the two matters as that the matter set up in the plea ought to affect the matter of the equitable right of complainants to have secured to them their interest in remainder in the rest of the property, and that, therefore, the exceptions to the plea are well taken.” If they owe this money, they may be compelled to repay the same to Mrs. Bethea, but surely, the fact that they owe it ought not to bar them from security of the remainder of the fund, in which they have a third interest, endangered, as alleged, in the hands of said Henry Bethea. The bill is not filed for a division of the fund, but for the security of complainants in their ultimate interest therein, when it comes to be divided. The doctrine of offering to do equity before seeking it, has no application to a case of the kind. The fact that complainants owe this money has no just relation to the relief sought, further, perhaps, than as the court may consider it in determining the amount of security that should be required of Henry Bethea for the remainder of the fund. — 1 Beach on Mod. Eq. Juris., § 14; 1 Pom. Eq. Juris., § 399.

We find no error in the decree of the court overruling the demurrers to the bill, and sustaining exceptions to the plea of defendant, Eugenia V. Bethea.

Affirmed.