90 Ala. 131 | Ala. | 1890
These cases are in all resjiects alike, and depend on the interpetation of Wm. Gr. Crawford’s will. Testator died in f 867, leaving a widow, Sarah B. Crawford, and live children living — JohnW. Crawford and JuliaS. Crawford being two of the children. Mary E. Crawford, one of the five children, died intestate soon after the death of testator, never having married. The widow, Sarah B., never married, and is still living.
In January, 1887, Mrs. Crawford executed a note, due and payable in January, 1888, on which judgment was rendered against her in July, 1888. On this judgment execution was issued, the lands in question levied on and sold; and E. H. Dryer became the purchaser, and received deeds from the
In December, 1887, after the debt was incurred under which the land was sold, Mrs. Sarah B. Crawford, by deeds of gift, conveyed to her children, John W. and Julia A. Crawford, in separate lots, the lands severally sued for in these actions. It is clear these conveyances could not avail anything against her debt previously incurred. — 3 Brick. Dig. 515, § 119.
The will confers on Mrs. Crawford “the privileges and rights of . . . selling and conveying property” which the testator then owned; a very lull power of disposition. This, it is contended, enlarges her estate into an absolute tee. We can not agree to this, for two reasons. First, the will does not give Mrs. Crawford the individual, exclusive use and enjoyment. Its language is, “that my whole estate be kept together and enjoyed by my beloved wdfe, Sarah B. Crawford, and my children,” naming them — five in number. There is, in the devise, no discrimination between the wife and children, in the quanfotm of interest given. Second, the power of disposition is conferred on the wife, not as an individual, but in her executorial capacity. This can not enlarge her individual interest.
At the time the will was made, as well as at the time it took effect, the five children for whom it made provision, were in esse, and were capable of taking under it. The provision., as we have seen, was equally, and without discrimination, in favor of the wife and children by name. Whatever estate one took, the others were equally entitled to, and their interest accrued at the same time; not in succession, one to the other. No proper interpretation of the language, considered in connection with the attendant facts, can install the widow as first taker, and leave the children to come in as successors to her. Under the rule declared in Wild’s Case, as well as under the language of the will itself, the children took co-equally and cotemporaneously, each having the same property rights as the other. — 2 Jar. on Wills .(Bigelow’s Ed.), 389 et seq.; Ib- 411 et seq.; Rap. Law Die., tit. “Wild’s Case.”
The logical result of what we have said is, that Mrs. Crawford, under the will of her husband, acquired an equal, undivided interest with her children in the land sued for, and that interest became Dryer’s under his purchase at sheriff’s sale. To that extent, according to the facts shown in this record, he was entitled to a verdict and judgment. The rulings of the Circuit Court were not in harmony with these views.
Reversed and remanded.