48 So. 113 | Ala. | 1908
— The will in question provides that the respective shares “that I have given to my several daughters are given to them and their bodily heirs or the lawful heirs of their bodies and to their own individual control and not subject to debts contracted by their said husbands or any other person whatsoever.” If this clause stood alone, it would create a fee-tail estate, which is by the terms of section 3397 of the Code of 1907 converted into a fee-simple estate, in favor of the daughters.—Mason v. Pate’s Ex’r, 34 Ala. 379; Smith v. Greer, 88 Ala. 414, 6 South 911; Slayton v. Blount, 93 Ala. 576, 9 South. 241. See, also, the case of Wilson v. Alston, 122 Ala. 630, 25 South. 225, wherein the line of demarcation is drawn between these cases and the line of decisions relied upon by counsel for appellants.
The will, however, further provides: “Should any of my youngest children die before having or leaving any heir, then their shares to be divided between the remainder or surviving part of said four younger children.” Conceding, without deciding, that this was intended as a
While the word “heir” is used in the attempted limitation, it is evident the testator meant “child,” as the having of an heir eliminated the limitaton, and the dying before “having an heir” evidently meant dying before giving birth to a child.
The judgment of the circuit court is affirmed.