57 Ala. 396 | Ala. | 1876
In his construction of Mrs. Hill’s will 'in this .cause, the chancellor allowed an undue influence to the coflicil excluding her son, George F. Huekabee, from the benefit of provisions which previously related equally to him, ■and/her other children. Except in the particular of reducing the' number of the beneficiaries to whom the second, third, fourth and fifth items of the will gave her estate, the codicil Aloes not, in any respect, change their meaning. If they Created vested interests in the devisees and legatees, as they -jstood in the will when it was first signed and attested, those /interests were not made contingent by anything subsequently added.' The codicil changed the number of the donees under the will from four to three — not the nature of their interests.
"Very clearly, according to the authorities, the estate given to Susan Hill was a vested estate, although to be “ set apart ” to her, at a future time. It was not necessary to this construction, that the income of her portion of the property, in the meantime, should be appropriated to her use. Yet, the testatrix evidently contemplated that she would duly participate in the income of all the land and personalty which was given to the husband of testatrix, as trustee. For, notwithstanding he was invested with authority to manage this property, and to receive the rents, issues and profits, without being accountable therefor to anybody, still, it is expressly declared in the will, that it is “expected of him that he will prove .a kind father to the children, and apply such income, increase,
The-property itself was to be equally divided among them,, when they should attain to years of maturity, only the division and possession of it was to be postponed — not the vesting of their respective interests. — 1 Jarman on Wills, ch. 27. ' ■ _
_ The effect of item fifth was, to qualify the second and other ■ items of the will, by including the husband of testatrix within its provisions, on equal terms with the children. Although he was not to l’eceive his portion in severalty, until the youngest of the children should become of age, or marry, his > right to it was not made contingent; and it was evidently the intention of testatrix that he should participate in the benefits. of the income, in the meanwhile. It followed that his will, made after the death of Susan, his own child by testatrix, in favor of Tunstall Andrews, her son by a former hiisband, was operative to convey the whole of that portion to Tunstall.
By the death of Susan Hill, the youngest of the beneficiaries, her right to a third part of the estate passed, according to the laws of descent and distribution, to her two surviving half-brothers, George E. Huckabee and Tunstall Andrews ; the former, appellant’s intestate. But Susan, if living, Could not have acquired possession of her share during the life-time of her father, Mr. Hill, until she should attain the age\ of twenty-one years, or marry. Her father would, in the meantime, be entitled to the control and management of the property, and to receive the rents, issues and profits, without accounting therefor to anybody; though for the benefit of allt concerned in the trust, and for the purpose of enabling him,’, as a kind father, to provide for the support, education and maintenance of the children, as to him should seem best, and so, after the death of Susan, Mr. Hill would, if he had lived so long, have continued trustee, and have been entitled to receive the income and profits, as before, until Tunstall should have the right, under the terms of the will, to demand his portion. The time for the division of the estate would then have come, he being the survivor of the children of testatrix provided for by the will, and having attained majority.
But what effect, in this direction, was produced by Mr. Hill’s death? Did his life and the intermediate estate of which he was trustee, terminate together ? or might a trustee have been appointed to execute the trust with which he was clothed, though without his exemption from accountability ?
So much of the decree of the chancellor as declares “ that under the will of Harriet Hill none of her legatees took vested legacies, and that the death of Susan Hill before arriving at age, or marrying, caused her interest in the estate of said Harriet Hill, deceased, to lapse, and fall into the common fund, of which Tunstall Andrews is now the sole owner, and as such, he holds a vested legacy,” must be, and the same is, hereby reversed and annulled.
But inasmuch as the bill was prematurely filed before complainant was entitled to demand and have possession of the property sued for, the decree dismissing the bill will be so modified as to dismiss it without prejudice to the right of complainant to sue again hereafter; and so amended, the decree of dismissal is affirmed, at the costs of appellant in this court, and in the court of chancery.
