Campbell v. Noble, 110 Ala. 382

Campbell v. Noble

110 Ala. 382

| Ala. | 1895

HEAD, J.

This controversy turns upon the proper construction of item 5 of Arthur S. Hogan’s will, viz.: “My grand-daughter, Elizabeth Winter, whenever she shall marry, she shall take into possession one-half of the plantation, one-half of the brick house lying in Franklin county, State of Alabama, also eighty acres of land lying at the foot of the mountain, one-half of the negroes named in the item next below. If the said Elizabeth shall have ah heir or heirs, in that case after the death of her father and mother she shall have the whole of the plantation and house and lob in the town of Tuscumbia. together with the balance of the negi\es,she having first to set apart or provide for the- genteel support of her sister Josephine during her life. If the said Elizabeth die and leave no heir or heirs of her body, my will is that all of' the property she may acquire by the will shall be equally divided between all of my children living and such of my grandchildren whose parents may have died, and if she should die and leave an heir or heirs I give it to them forever.” The testator died in 1849. When his will was made and when he died, he had living a number of children and grandchildren. The devisee in question, Elizabeth Winter, married one Bell, and had one child who lived three or four hours *393and died. Her sister, Josephine, was an imbecile or idiot, and died in 1866. Her father died not long after-wards. Her husband, Bell, died in 1873, she in 1891, and her mother in 1892. By the 6th item of the will the testator created an estate in these lands in his daughter, Sally Ann Winter, who was the mother of said Elizabeth and Josephine, in the following language: “I now loan to my said daughter the plantation” (and so on, describing these lands and certain slaves and mules) ; “when her daughter Elizabeth marries the one-half of the above named negroes shall be delivered to her and one-half of the plantation and one-half of the brick house on said plantation. I do hereby appoint T. W. Winter guardian and agent for his wife, and his daughter during life. ” T. W. Winter was the husband of Sallie Ann and father of Elizabeth. The plaintiffs now suing for a part of the lands are the grandchildren .of the testator, claiming as purchasers by virtue of item 5 of the will. The defendants claim under a conveyance from Elizabeth Bell and her husband, and her father and mother, executed to one Walker, in 1860, which was after the birth and death of Elizabeth Bell’s child. They claim that, under the will, Elizabeth took an absolute estate in fee, by virtue of the statute of 1812, declaring estates in fee tail, thereafter attempted to be created, to be estates in fee simple. Their contention is that the will, in form, provides for an estate for life in Elizabeth with remainder to the heirs of her body, which under the influence of the rule in Shelley’s case then in force, defining the word “heirs” in such a connection as denoting a limitation, vested in her an absolute estate ; and that there is nothing in the devise which furnishes a just reason why it should not be accepted in its formal and technical sense. We think such is the form of the devise. Its language is: “If the said Elizabeth die and leave no heir or heirs of her body, my wifi is that all of the property she may acquire by this will shall be equally divided between all of my children living and such of my grandchildren whose parents may have died, and if she should die and leave an heir or heirs [of her body, the testator evidently meant to reiterate], I give it to them forever.” On the other hand, it is contended by the plaintiffs that, viewing the will in its entirety, and the condition and surroundings of the testator, it is manifest *394that be did not intend the words “heirs of her body and “heir or heirs” to be read, as written, and accepted according to their technical signification, but that he evidently used them in the sense of “child” or “children,” thereby designating a particular class of persons who should take in remainder, withdrawing the devise from the operation of the rule in Shelley’s case and the statute of 1812. Similar questions have been before the courts of the country, arising, both upon deeds and wills, in a multitude of cases ; many in our own court. The authorities are well collected in the briefs of respective counsel. It must be conceded that much strictness has been observed, in the adjudicated cases, in construing the words of limitation according to their legal and technical import; some of the cases going so far as to hold that where such words are used, in defining the estate granted or devised, considered in and of themselves, creating an absolute estate, an express declaration in the instrument that only an estate for life, in the first taker, was' intended, will not be permitted to overcome the legal effect of the words of the grant or devise itself ; but we think the result of the best considered cases is, without taking the pains to set them out here, that, in a proper case, where the instrument is so framed, in its entirely, and such terms and expressions are used therein, considered in the light of the condition and circumstances of the grantor or devisor, as to justify it, the court will first ascertain how the instrument should really be read, according to the true intent and meaning of the person speaking; and if it is obvious that the w;ord “heir” or “heirs” was used for “child” or “children,” the mind will be permitted, in order to give effect to what was really intended to substitute the latter for the former expressions. This should not be done lightly, but upon weighty considerations, forcing the irresistible convic-victiqn that the substituted words were intended by the maker of the instrument. . When, in a given case, it is found that this should be ’done, it will be done, and the legal effect of the instrument, as it was intended to be written, pronounced. The case of May v. Ritchie, 65 Ala. 60—an opinion delivered by the present Chief Justice—presents a striking illustration of this principle, in a case involving the proper reading and construction of a deed, wherein greater strictness is required than in *395wills. We must look then to the will of Mr. Hogan, examine it i'n all its parts, consider his condition and circumstances, and determine, upon the strict rules we have announced, whether or not, as the plaintiffs contend, the expressions “heirs oh the body,” and “heir or heirs” employed by the testator, were, in their legal sense, the terms he really intended to employ — whether he did not use them as synonymous with “child” or “children” The reporter will set out the will. We need not enlarge this opinion by quoting its language. It was drawn by a person utterly unskilled and incompetent to such a task. Manifestly no knowledge of, or regard to, the meaning of technical terms existed or was observed. Terms of different legal signification are used indiscriminately to express the same meaning. The criticisms of this court, in May v. Ritchie, 65 Ala. 602, supra, upon the deed therein under consideration, apply with great force to this will.

Upon mature consideration, our minds are without doubt — it is impossible to escape the, conviction — that the testator intended to declare that if Elizabeth died leaving no child or children the estate should go to his children and grandchildren as in the will expressed; but if she left a child or children it should go to such child or children forever Thus construing the will, it follows, that the plaintiffs — the grandchildren of testator — took as purchasers, and their estates and right to recover are not affected by the conveyance of Mrs. Bell, who had only an estate for life.

Reversed and remanded.