52 So. 746 | Ala. | 1910
This is an action of ejectment.
Plaintiff (appellant here) claims title as remainder-man and devisee under the will of his grandfather, John Blakeney, who is indisputably shown to have been seised and possessed of the lands at the time of his death, viz., in 1862; his right of possession being thereby conditioned upon the deaths of three life tenants, his grandmother, Polly Blakeney, his father, Robert Blakeney, and his stepmother, Nancy Blakeney, the last of whom to die was his father, who departed this life May 4, 1908. Nancy Blakeney died before the testator. The defendant (appellee here) claimed title as a purchaser and by adverse possession for more than 10 years, but claims as a stranger to and not under or through the testator, John Blakeney, or his privies. The defendant or those through whom he claims had been in possession for more than 10 years before the bringing of the suit. The court gave the general affirmative charge for the defendant, and plaintiff appeals, insisting that the general affirmative charge should have been given him.
The only questions of law upon which the rights of the parties to this record depend are: First. Did this
The will contained a residuary clause, which is as follows:
“The residue of my property (if any) is to be divided into equal parts, one-half to go to my said wife and the other half to my said trustees to be held as a portion of the trust estate. If, however, the said residue or any portion thereof consists of money, the whole of it is to go to my wife.”
The tenth and twelfth clauses of the will are as follows :
“10th. I hereby declare it to be my desire in bequeathing and devising the property in the foregoing items to protect my son and his wife and his children against any act of imprudence on his part and also any accident which may befall him hereafter.”
“12th. After the termination of the life estate of my wife in the property before bequeathed & devise to her. It is my will and the trustee then to be appointed, by my said son and his wife, is hereby directed to take possession of the same (Beal and Personal) and to hold and use and employ the same as a portion of the trust estate created in item nine of this my will, and upon the death of my said son and his wife, the same is to be equally divided among the children of my said son— provided however any other, child or children shall be born to my said son, I hereby direct, said trustee out of the negroes or their increase in this item mentioned (after the death of my wife and before the division among .my grandchildren) to give and deliver to such child or children which may hereafter be born each a negro about equal in value to the average value to the negroes specifically given to my Grandchildren. So*634 as to make the final division of my property among my Grandchildren as nearly equal as possible.”
Wills speak only from the death of the testator, and must be construed as they would have been construed at the moment of death, and without regard to the consequences resulting from subsequent events, which were probably not foreseen or anticipated at the making of the will. — Taylor v. Harwell, 65 Ala. 1. We therefore conclude that from the whole will it clearly appears that it was the testator’s intention to give one-half of all his real property to his wife, Polly, for life only, to create a trust in the other half of his real estate for Robert H. Blakeney and his family, during the life of said son, provided said Robert survived his wife, Nancy, and for and during the life of Robert if his wife Nancy survived him; that, if said Nancy survived Robert, she was to have said one-half for the support of herself and children during her life; that, after the termination of these life estates in said real estate, all of the real estate should go to the children of Robert who were living at the death of the testator and at the death of said Robbert, and any who had lived between the death of the testator and the death of Robert; that after the death of Robert EL Blakeney, and not until then, the property was to be divided equally between the testator’s grandchildren, the children of Robert. Under the provisions of the will Polly and the trustee for Robert took life estates in. all the testator’s real property, with a vested remainder in the testator’s grandchildren in esse at testator’s death, in possession, only after the death of Polly and Robert, which remainder would open up to let in after-born children of Robert as they should or might come in esse. — Gindrat v. Western Railway of Ala,, 96 Ala. 162, 11 South. 372, 19 L. R. A. 839; Smaw v. Young, 109 Ala. 533, 20 South. 370; Watson v. William
If there could be any doubt as to the foregoing conclusions, we think they are made certain by the following statutes and for the following reasons: Section 1592 of the Code of 1852 (Code 1907, § 6155) provides: “Every devise made by a testator in express terms of all his real estate, or in any other terms denoting his intention to devise all his real property, must be construed to pass all the real estate he was entitled to devise, at the time of his death.” Section 1604 of the Code of 1852 (Code 1907, § 6165) provides: “When any testa
In this case, by virtue of the statutes, the after-acquired property passes under the specific devises as well as under the residuary devises, and it is not. necessary to have a residuary clause in a will in order to pass after-acquired property. The devisees being the same identical persons in both the specific clauses and the residuary clause, and the testator’s intention being clear to devise the fee in all his real estate to the’ children of Robert, the fee to this after-acquired real property passed to the plaintiff and other children of Robert PI. Blakeney. It is clear from the entire will that the testator intended all his real estate to go to his
The plaintiff was entitled to the affirmative charge as requested.
Reversed and remanded.