79 Ala. 63 | Ala. | 1885
We have carefully examined the testimony, and are not convinced the chancellen’ erred in holding it insufficient to reform the mortgage, or to make it speak other than what its language imports. Mr. Overall, the draughtsman, is very positive and explicit in his testimony, and says he wrote the mortgage as he was requested to write it. This testimony,
What interest did Mrs. Bolman’s mortgage convey? This must depend on the proper interpretation of her husband’s will, the source of her title. That will, in its first clause, gives to testator’s wife all his property, real and personal, with its income and profits, “ for her use and disposal during her natural life.” The second clause gives over to testator’s children, to take effect at the death of his wife, •“ all of the foregoing property, rents, income and profits, remaining undisposed of and unused by my said wife.” The third clause, after appointing his wife executrix, and relieving her from giving bond, and from liability “to account in any court for the performance of her duties,” clothed her with “ full power to sell and dispose of all my property, real and personal, of every kind, at her discretion, without the orders of any court, and with full power to invest the proceeds thereof in any manner she deems best, or to employ the same in any business she may see proper to do.” This will was duly probated.
We have here a will, giving an express estate for life, without liability to account, with devise over of what may^remain undisposed of, or unused, and with express general power of disposition in the first taker; full authority to enjoy, use and dispose of the entire property, with a gift over of only what may remain undisposed of and unused. Under all the authorities, as well as in the nature of things, Mrs. Bolman took an absolute estate in the property, and could dispose of it as she pleased.—Weathers v. Patterson, 30 Ala. 404; Flinn v. Davis, 18 Ala. 132; Barford v. Street, 16 Vesey, 135; Irwin v. Farrer, 19 Vesey, 86; Daniel v. Dudley, 1 Phil. Eng. Ch. 1; Holloway v. Clarkson, 2 Hare, 621; Page v. Soper, 21 Eng. L. & Eq. 499; Ide v. Ide, 5 Mass. 500; Morris v. Phaler, 1 Watts, 389; King v. King, 12 Ohio, 390, 474.
What we have said renders it unnecessary we should consider the question of subrogation. The mortgage of Mrs. Bolman gives all the security the ownership of the absolute title to the property can confer.
The original mortgage has been sent up for our inspection. In its preparation a printed blank was used, and the clause which determines the questions raised by the record is partly printed, and partly in manuscript. We submit a copy of the clause we propose to consider, distinguishing the printed parts by small Roman capitals. It is the habendum clause, and is in the following language: “ To have and to hold the above MENTIONED AND DESCRIBED PREMISES, WITH TIIE APPURTENANCES,
Among the rules for interpreting instruments partly printed and partly written, it is said that which is written shall have the greater weight, because it is presumed greater attention was bestowed on the written parts. The printed form is intended for general use, without reference to particular objects and aims. That which is written is supposed to be dictated by the particular intention and purpose of the parties contracting. It is also our duty, in arriving at a proper interpretation, to examine the whole instrument, with a view of ascertaining and carrying into effect the purpose and object the parties had in view; and we must strive to give some operation to each clause of the conveyance, and to reconcile apparent discrepancies. That parties intended to insert in their contract provisions that are' incompatible, is not to be supposed ; and a construction that would lead to such results, is to be avoided, if possible. TJi res magis valeat guam pereat, is alike a maxim, and the policy of the law.—1 Brick. Dig. 533; Bulmar v. Jay, 4 Sim. 48.
Looking at Mrs. Bolman’s mortgage to Mrs. Lohman, and considering all its parts, we do not think the intention was to make the principal demandable, so long as there was payment of the semi-annual installments of interest. True, there is a clause providing for the payment of “ two thousand dollars on demand.” That clause, however, is partly printed, and, in view of other provisions, we think its insertion was a simple filling up of the blank. Immediately following it, and in connection with it, is a stipulation that Mrs. Bolman should pay, every six months, sixty dollars as the interest on said sum, commencing at the end of six months from the date of the
There is yet another reason, however, why we feel assured our interpretation of Mrs. Bolman’s mortgage is correct. It provides that, at the death of Mrs. Lohman, the principal sum, two thousand dollars, is to become the property of Mrs. Bolman, if living; and if dead, then of her daughters. This stipulation is as binding and irrevocable as any other provision of the contract. Its effect was and is to devest all title to the principal of the two thousand dollars out of Mrs. Lohman, except as a consideration for the mortgage security she took — a security for the semi-annual payment of the agreed interest to her during her life. And if, by non-payment of interest, the right accrued to her to foreclose the mortgage, this would give her no right to receive or handle the principal, or to cut off the remainder she herself had created. She could only have it brought into the Chancery Court, and there invested and secured by the order of the court, so as to secure to her its interest or income. It would, in such event, become as much the duty of the court to secure the money for the benefit of the remainderman, as to provide for the payment of the interest and income to Mrs. Lohman.—Mason v. Pate, 34 Ala. 379; Dunham v. Milhous, 70 Ala. 596.
In corroboration of our interpretation of the mortgage, if corroboration is necessary, it may not be out of place to say, the testimony conclusive!}' proves that Mrs. Lolnnan herself understood the mortgage as we do, until the alienation took place between her and Mrs. Bolman.
The question, then, is narrowed down to the inquiry, is it shown that Mrs. Bolman made default in the payment of interest, so as to authorize Mrs. Lohman to claim a foreclosure of the mortgage ? We do not think the testimony proves, or tends to prove she made a willful -default. On the contrary, we think she made diligent effort to pay the interest punctually ; and if not intentionally prevented by Mrs. Lohman, it is at least shown that the former made every effort to pay the money
Many o.ther questions have been discussed, but what we have said renders their decision unnecessary.
The decree of the chancellor Js reversed, and a decree here rendered, dismissing complainant’s bill, at the cost of her next friend, in the court below, and'in this court.
