59 So. 58 | Ala. | 1912
It is conceded that the sole question presented by this appeal is whether appellee took an absolute fee upon the death of the testator, her father, or merely a conditional fee, subject to be determined upon her death Avith children surviving her. A proper .construction of the third item of her father’s Avill determines this question; the facts being undisputed. This item reads as follOAVs: “3rd Item. I give, bequeath and devise to my said daughter Martha T. Dickson the following property, to wit: The home place whereon I now reside, consisting of lot No. 32 according to Sheppard’s map, in the city of Lanett, originally E luff ton, Chambers county, Alabama, with all the rights, members and appurtenances to the same belonging or in any wise appertaining. To have and to hold to her own proper use and benefit and behoof forever. Provided, however, should my said daughter
The intention of the testator is always the pole star in the construction of wills. With this guide, we cannot agree with the chancellor in- his holding that Martha T. Dickson took an absolute and unconditional fee ■at the death of the testator. We are constrained to hold that she took a fee subject to be defeated upon her «dying without child surviving her. It therefore can-, not be determined whether she took an absolute or a conditional fee until the contingency mentioned in the will happens. If she dies leaving a “child or children •surviving her,” then she takes an absolute fee, and the lands descend to her heirs; but if she leave no such ■child or children, then the remainder reverts to the testator’s heirs. The chancellor held that the decision in the case of Smith v. Smith, 139 Ala. 406, 36 South. 616, governed him in his decision and decree. The chancellor evidently overlooked the fact that the decision in that case on a second trial was departed from and g-reatly modified, if not expressly overruled. — See same case, 157 Ala. 79, 47 South. 220, 25 L. R. A. (N. S.) 1045, and note. From this note, it will be seen that the authorities are greatly divided upon this question; but we think this court is committed to the rule we have announced. — See the cases of English v. McCreary, 157 Ala. 487, 48 South. 113, and McWilliams v. Ramsay, 23 Ala. 813.
In the last-cited case, where “a husband conveyed by deed certain negroes to a trustee, in trust Tor the use, behoof and benefit of the grantor’s wife forever, provided, however, that the title or property in said slaves
The deed in that case contained a proviso similar to that in the will in this case, and in speaking of the effect of the proviso the court said: “The natural and legitimate office of a proviso is to restrain or qualify some matter which precedes it; and the words of limitation upon the interest of the wife, as they are found in the proviso, sufficiently indicate the intention of the donor to confine the gift to the wife, to the term of her natural life. But, in addition to the language of the proviso, we have the limitations over upon the termination of the life interest. The donor not only, in express terms, limits the beneficial interest of the wife to her life, but he also makes a disposition of the property after the termination of that interest. We must, if possible, so construe the deed as to give effect to these limitations, and we cannot sustain them, unless we support the proviso.” — 23 Ala. 817.
It follows that the decree of the chancellor must be reversed, and the chancellor will enter a decree in accordance with this opinion.
Reversed and remanded.