43 Ala. 666 | Ala. | 1869
Wills take effect from the death of the testator, and their validity and their construction are to be controlled by the laws of the country where they are to be enforced.—17 Ala. 286.
The testator, in this case, died in 1840, and the laws which then effected the provisions of this will, disposing of his property in this State, were the 5th and 10th sections of the act of the 22d December, 1812.—Aikin’s Dig., pp. 94, 95, 5, 35, 39; Clay’s Dig., pp. 156, 157, 5, 33, 37. The ef
In the construction of wills, very great indulgence is allowed in order_to sustain and carry out the intention of the testator, if that intention does not violate the policy of the law.
“ The clauses and sentences of • a will shall be severally transposed to serve the meaning of it; and construction shall be made of the words to satisfy the intent, and they shall be put in such order as that the intent may be fulfilled.” — 10 Bac. Abr., Bouv. 535. “ And if the words admit of a two-fold construction, the rule is to adopt that which may tend to make good the instrument, and to effectuate, rather than to frustrate ; and if words are rejected, or supplied, by construction, it must always be in support of the intent.” — 10 Bac. Abr., Bouv. 529. “And the intention of the testator is not to fail, because it cannot take effect to the full extent, but it must work as far as it can.”— 10 Bac. Abr., Bouv. 540.
These are rules of construction applied to wills, which are sustained by the most respectable authorities at common law ; and they have not been abrogated by any statutes, or judicial decisions of- this State. — 1 Kent, 510, 511.
Under their influence, we feel justified in refusing to give any technical import to the word “ perpetuate,” as used in explaining the testator’s reasons for devising the “ Belmina estate,” as shown in his will, so as to control the true meaning of the words used, in creating the devise of that estate to his sons.
The portion of the will on which this case turns, is the 6th item. That item is in these words, namely : “ Having,' in item 2 of this, my last will and testament, given and be
As a fact, there can scarcely be a doubt that it was the wish of the testator to keep this portion of his large estate in the possession of his sons, Thomas and David Porter Bibb, after the termination of his wife’s estate in the same, as long as the law would permit him to do so. The will was made with a purpose to clothe them with the legal right to hold it with this view. To have intended otherwise would have been a folly, and a nugatory act. It would be equivalent to saying, “ I give my sons this property for a certain legal purpose; that is, to keep it in the family as long as the law will allow, in which I feel a most solemn interest, yet, at the same time, I so contrive as purposely
Then let us enquire what length of time the law permitted the testator to keep the estate devised in the 6th item of his will above quoted, in his family. Undoubtedly, this could have been done for a period of a life, or lives, in being, at the death of the testator, and for twenty-one years, and a fraction of a year afterwards. — 4 Kent, 268, marg. In this case, both the sons, Thomas Bibb and David Porter Bibb, were living at the death of the testator ; and the devise, by effect of our statute, is to the eldest son, Thomas Bibb, in fee simple, and in case he should die leaving no lawful male issue, then and in that case, the estate given to Thomas, “shall become the property” of David Porter Bibb. Thomas Bibb, jr., died without leaving male issue. And the question is, was the estate given to 'Porter Bibb, such an one as the law permitted to stand. Thomas Bibb, jr., could not die leaving male issue, unless such male issue were living at his death. They could not be left, unless they were living when he died. The word “ leaving,” then, imports that this was the testator’s meaning. Besides this, the “ Belmina estate” was the gift. It compre - hended lands, slaves, stock, furniture and all the appurtenances belonging to “ said plantation,” to a very large amount. Certainly, the testator intended that the ivhole estate should pass by the devise — the realty and the personalty together! As a fact, this must have been his wish. All the personal property included in the gift did pass to David Porter Bibb, upon the death of his brother Thomas, leaving no lawful male issue surviving him. About this there can be no question.—Flinn v. Davis, 18 Ala. 69. Why, then, did not the land pass with the rest ? This certainly must have been the testator’s desire for he intended to devise the “ Belmina estateand the land was a part of it.
But it is said, that the legal intent of the testator must be ascertained from the proper legal construction of the language he has used to indicate his intent. And in this case the language used imports an illegal intent. That by
The word issue may have this general meaning, or it may have a more limited one. It may mean children of the first taker, or it may mean issue living at his death.—6 Bac. Abr., Bouv. 147; 7 Ves. 522; 3 Ves. & B. 67. If the testator used it in either of these imports, it is the duty of the court so to construe it. The construction of words in a will is much less technical than the use of the same words in a deed. In the will, their technical import may be altogether disregarded, if they were not used by the testator in a technical sense. Wills are the least technical of all legal instruments for the conveyance of estates. Each will must stand or fall upon its own facts. They are to be “ expounded rather on their own peculiar circumstances, than by any general rules of positive law.”—1 Spence Eq. 470, marg.; 2 Blac. Com. 382. They very much differ from deeds. In a deed the words govern the intention; in a will the intention governs the words.—10 Bac. Abr., Bouv. 535; 2 ib. 576.
In this will there is but one set of words used to convey the “ Belmina estate,” which consisted of both real and personal property to a very large amount. If the testator intended to convey a part of this “ estate,” he must also have intended to convey the whole. That he did intend to convey a part, is beyond any question whatever. The language used passes the whole of the personal property without any construction or explanation.—4 Kent, 281; 18 Ala. 69. Then the court is bound to construe the language used
There are two contingencies, on the happening of either one of which, the estate given to Thomas Bibb was cut off and vested in his brother, David Porter Bibb. The one was, that Thomas Bibb “ should die leaving such male issue, the same shall become extinct before he or they shall arrive at the age of twenty-one years, likewise leaving no male issue.” The words leaving and having must refer to some thing in existence at the time the leaving and having occurs. This can only be at the death of Thomas Bibb. Thomas Bibb could not die and leave a thing that did not exist ; he could not die and have a thing that did not exist. Then these words, and the purpose of the testator, as manifested in using the same words to convey both real and personal estate by the same gift, show, beyond all reasonable controversy, that the testator intended to use the word issue to mean issue living at the death of said Thomas Bibb, jr. This construction is allowed by the highest authorities and is justified by the facts and circumstances of this case. We therefore hold, that upon the death of Thomas Bibb, jr., leaving no lawful male issue surviving him, the “ Belmina estate ” passed to David Porter Bibb, and became his “ property,” to descend to those persons entitled to the same, as required by the laws of this State, at the death of said David Porter Bibb.
There is but one gift here; that is, the gift of the “ Belmina estate.” It can not reasonably be questioned, that the testator wished this whole gift to pass as he has directed in his will: First, to his son Thomas Bibb, and then, upon the happening of one of two certain events, to his son David Porter Bibb. This must be so, because it is so written down in the will. This may be done without the creation of a perpetuity. And if the testator did not intend to create a perpetuity, the court ought not to impute this purpose to him. The court must presume, that he knew the law, and that he did not act with a view to violate it. In Flinn v. Davis, Chief-Justice Dargan says : “ I hold
There is no error in the judgment of the court below, and the same is affirmed.