21 Ala. 406 | Ala. | 1852
— ’The testator, by his will, devised certain lands to the children of a deceased son. The other clauses of the will are as follows :
“I give and bequeath to my wife Clara one-fourth of the income of all the rest of my real estate during her natural life, and the entire use of my present residence, on Conti street, and one-fourth in foe simple of all my personal estate for her use.”
“I give and bequeath to my children Anna, Louisa, and son John Baptiste, the balance of my real estate not already bequeathed, and also all my personal estate, to be distributed ■when required, at mature age or majority, in equal parts.”
The wife is appointed testamentary guardian of the children, and the defendant in error, executor.
The first question presented in the argument, was in relation to the right of the executor to the possession of the real estate devised to the children. By the common law, the
We have considered the question presented, upon the analogies of the common law, and without any reference to the statutes of this State, authorizing the executor or administrator to sell or rent the lands of the decedent — the rule being-settled, that these statutes do not, of themselves, intercept the
In relation to the legacies bequeathed to the children, if they had not been blended together with the devise, by their insertion in the same clause of the will, and the application of the same words to each,|we should be of opinion that, as the title to the personal property vests in the executor, and the term “ distributed,” when applied to that kind of property, refers to the time when the parties entitled would have the right to the possession, the legatees could not claim the possession until the period fixed by the will; but as it is, we are clear that the intention of the testator must have been the same in relation to both his real and personal estate, given by the same clause and the same words, and as present words of bequest are used, we can, without straining, construe the term “distributed” with reference to personal property, as synonymous with divided, and as postponing, not its distribution, but its division among the legatees until the period fixed by the testator.
It follows, from the construction we have given to the will, that as the children were entitled to both the real and per
In relation to the proceedings in the Probate Court, the question is, whether such court erred in sustaining the demurrer to the answer of the defendant in error. The petition is not only for distribution, but a final settlement; and the facts alleged in the answer would not constitute a full de-fence, as, under our decisions, although the legatees, or either of them, were entitled, after eighteen months from the grant of letters testamentary, to call upon the executor for a settlement of the estate and distribution; yet, on the hearing, it was competent for the executor to show cause, both against the final settlement and distribution, or against the former only. Sanky v. Ellsberry, 10 Ala. 455. The only ground set forth in the answer which would prevent a final settlement, is, the allegation that suits were pending against the defendant in error as executor; and as these suits are not set out in the answer, and no reference whatever made to the records, or to any schedule which describes the claims on which
The judgment is therefore reversed, and remanded.