92 So. 167 | Ala. | 1922
Item 2 of the will of Robert W. Ennis gives his wife the property therein mentioned absolutely, while the other items of said will deal with other property, and qualified or limited the interest of Mrs. Ennis, and provide for the use, enjoyment, and ownership of same after her death. These subsequent items have no bearing whatever upon item 2, and apply only to the property covered by item 3. True, item 5 is not expressly limited by a specific reference to item 3, but it is manifest that it does not intend to deal with property covered by item 2, or attempt to cut down the absolute estate of Mrs. Ennis to a lesser one, or to make any disposition of same after her death. But, if a doubt could arise as to the meaning of item 5, standing alone, it is removed when considered in connection with items 4 and 6, and which indicate that the testator had in mind only the property covered by item 3, and not the property previously given his wife absolutely by item 2. Mrs. Ennis having died before her husband, the testator, there was no disposition under the will of the property embraced in item 2. Nor does the codicil, executed after the death of Mrs. Ennis, make any attempt to dispose of this property, or to enlarge the other items of the will so as to include or deal with same. We therefore think that the trial court correctly held that Robert W. Ennis died intestate as to the property covered by item 2 of the will.
We have carefully examined and considered Exhibits B, C, and D of the bill (which will be set out by the Reporter), and cannot concur in the holding of the trial court, or the suggestion of counsel for the appellees, that they evince enforceable or collectable charges in favor of the estate against Lucille E. Little. They simply indicate what would be regarded as an advancement under the statute had Robert W. Ennis died intestate (section 3767 of the Code of 1907) and which seems to be exclusive as to advancements (Malone v. Malone,
We cannot hold that these advancements operated as an ademption, in whole or pro tanto, of the bequest to Mrs. Little, as hers is not such a special legacy as to embrace or include the specific thing advanced. The only case that we have found in the Alabama Reports which refers to or has applied the rule of ademption of legacies is Gilmer v. Gilmer,
The trial court did not rule upon the relief sought by the cross-bill, and we therefore have nothing to review in this respect. It may be sufficient to suggest that, notwithstanding *114 the will relieves the executors from making settlement in court, they may be compelled to do so under the Act of 1919, p. 566, amendatory of section 2686 of the Code of 1907.
The decree of the circuit court is affirmed in holding that Robert W. Ennis died intestate as to the property embraced in item 2 of the will, but is reversed in so far as it makes Lucille E. Little accountable for the sums advanced her, and as represented by Exhibits B, C, and D, and a decree is here rendered discharging her from liability for same, and the cause is remanded at the cost of the appellees.
Affirmed in part, and reversed, rendered, and remanded.
McCLELLAN, SOMERVILLE, and THOMAS, JJ., concur.