64 So. 95 | Ala. | 1913
On the 7th day of May, 1882, Mary J. Ball, of Bedford county, Tenn., was married to Clark Cross, of Jackson county, Ala. Clark Cross was a man of means, and for about a year after the marriage said parties lived together as husband and wife on a plantation of said Cross, in Jackson county. The marriage was an unhappy one, and about a year after it was contracted the wife left the home of said Cross, returned to her father in Tennessee, and on the 12th day of September, 1883, filed a bill of complaint against the said Clark Cross in the chancery court of Jackson county, Ala., wheréin she prayed for a divorce
Shortly before the filing of the bill, a son the issue of the marriage, was born to the said Mary J. Cross and the fact of the birth of the child Charles Cross is set up in the bill. The divorce proceedings resulted- in the rendition by the chancellor of a decree divorcing said Mary J. from the said Clark Cross granting to the mother the custody and control of the infant Charles Cross fixing the amount of temporary alimony and finally in the rendition of the following other decree: “It is adjudged, ordered and decreed that the complainant be and she is hereby allowed the value of $5,000 out of the real estate belonging to the defendant, Clark Cross, to be laid off and set apart as hereinafter directed, for the maintenance of herself during her natural life, or until she again marries, and for the support of her said child born of the wedlock of complainant and defendant, and, in the event of her death or marriage, the title in said land shall vest in said boy child of (complainant and defendant, and in the'event of his death, should he die after the death or marriage of his mother, it shall revert to complainant. Said lands to be in lieu of any dower interest and distribution she might otherwise have in her said husband’s estate.”
Under the above decree a certain tract of land of the said Clark Cross, being a part of a larger tract belonging to him, was set apart by commissioners; and the report and acts of the commissioners, in so setting the land apart, were by the chancery court, by special decree, confirmed. The said Mary J. Cross went into the possession of said tract of land and seems to have remained in possession of it until her son, Charles Cross, arrived at lawful age, when she and the said Charles Cross conveyed the land, in fee simple and with coven
Ajfter the rendition of the above decree of divorce, the said Clark Cross filed in the probate court of Jackson county his written declaration adopting Charles Macklin Bass, William C. Bass, and John Benson Bass, minor sons of one Clarissa Bass, as his children so as to make them capable of inheriting his estate. In this declaration he declared that the names of these children should be Cross instead of Bass, and since that time they have been so known. Subsequent to said (adoption of said children, the said Clark Cross married the said Clarissa Bass, the mother of said children so adopted by him; and the said Clarissa became the mother of a daughter of said- Clark Cross, viz., Eliza Marvin Cross. The said Mary J. Cross, and her son, Charles Cross, and the said Clarissa Cross, Charles Macklin Cross, William C. Cross, John Benson Cross, and Eliza Cross, still live. The said Clark Cross died on April 5, 1907, and left behind him, therefore, as his widow, the said Clarissa Cross, his second wife, and as his heirs the said Charles Cross, the son of his first wife, Mary J. Cross, and the said Charles Macklin Cross, William C. Cross, John Benson Cross, and Eliza M. Cross.
This, then, brings us squarely to a construction of the decree under which the said Mary Cross, the first wife of Clark Cross, and her son claimed title to the said lands, and which decree we have above set out.
The bill for divorce, which resulted, finally, in the rendition of the above decree, showed a state of facts which, we think, indicated to the chancellor, who rendered the decree, the necessity, in his decree, of not only providing for the said Mary Cross but also of providing for her son, should she die or marry before the death of the son. The bill showed that Clark Cross was the reputed father of the children whom he afterwards adopted and that their mother was his mistress. The bill further showed that the said Clark Cross was living with the said Clarissa Bass as his mistress when he married the said Mary J. Ball, and that he openly continued his relations with the said Clarissa after his said marriage. In fact, the bill shows that the relations of Clark Cross with Clarissa and his open recognition of her children as his own, after his marriage, was the prime cause of the separation which finally resulted in the divorce proceedings. 1 The complainant in the divorce proceedings was a young woman; her child was an infant when the decree was rendered; and there was a possibility that the complainant would again marry. The property which was set apart as permanent alimony was the property which was taken by the decree of the court in invitum from the father of said infant. The open adulterous relations of Clark Cross with the said Clarissa Bass, and the open recognition which Clark Cross, gave to her children as his children, were at least indications to the chancellor that, when he rendered the decree fixing permanent alimony, he was probably making the last provision which would ever
It was, of course, competent for the chancellor, in rendering his decree for permanent alimony, to vest the fee-simple title to the land set apart as permanent alimony in the said Mary Cross. As this is true, it was no concern of the said Clark Cross that the chancellor saw proper, in said decree, to declare that, in the event the said Mary Cross should marry or die before the death of her said son, then the son should have a life estate in the said land, and that at his death the lands should revert or go back to the said Mary Cross. We think, after a careful consideration of this case, that the chancellor, by the above-quoted decree, intended to vest in Mary Cross the fee-simple title to the land, but that he also intended that, if she died or married before! the death of her said son, then the son should have a life estate in said lands. It was the evident idea of the chancellor that the complainant might again marry, and it was his purpose to declare that, if she did so, then her said son should have the use of the land asi long as he lived. This provision would cut off the second husband or any children born to Mary Cross of a subsequent marriage from any use of the property while the said son of Clark Cross lived. It was also' the evident purpose of the chancellor to so hedge the title decreed to the wife as that, during the life of' the son, should she marry or die before he died, she could not, without the consent of the son, sell it, devise it by will, or otherwise dispose of it, so as to defeat his right to use and occupy it so long as he lived. Putting this construction upon the decree, no word is changed in it, and we feel that in so construing the decree we have given that effect to it which the chancellor’s words were in
The above being true, the decree of the court below is reversed; and a decree is here rendered dismissing the complainant’s bill of complaint.
Reversed and rendered.