McCroan v. Pope
17 Ala. 612
Ala.
1850
Check Treatment
DARGAN, C. J.

The first question that presents itself for our consideration is, what estate or interest did Mrs. Morris take under the will? I think it very clear that she took a life estate in the whole, with a remainder over, after her death, to such of her children as should survive her. By the will, the legal title is vested in George S. Morris, her husband, as trustee, and the land and negroes are to be employed by him in agriculture, or in such other way or manner as may be most beneficial to Mary Morris, his wife; he is to pay and hand over to her annually and every year the nett proceeds of the estate, for the sole and separate use and maintenance of Ills wife, Mary Morris, and her children, and after her death the whole is to be equally divided between such children as should survive her, either by her present or any future husband. I do not think the testator intended to give to the children of Mrs. Morris any immediate or joint interest with their mother, during her life, but intended to give to the mother a life estate in the whole, and the remainder over after her death to such of her children as should survive her. In the case of Jeffry v. Honeywood, 4 Maddox, 398, the devise was to Mary Jeffry, the daughter of the testator, and to all and every child, or children of her body lawfully issuing, and to his or her heirs forever, as tenants in common and not as joint tenants. Mary Jeffry died in the lifetime of the testator, leaving ten children. The question was whether the testator intended his daughter to take one-eleventh *616jointly with her children; if so, her share had lapsed; or did he intend to give Mary Jeffry the whole for life, with a remainder over after her death to her children, as tenants in common ? The vice-chancellor held that a life estate in the whole was given to the daughter, and the remainder over in fee to- her children. In the case of Wood v. Baron, 1 East 259, a testator devised to his daughter his whole estate and effects, real and personal, to hold and enjoy the same, as a place of inheritance to her and her children, or issue forever, and if his daughter should die, leaving no children, or if her children should die without issue, then over. It was held, that the daughter took an estate tail, with remainder oyer, although she had children at the date of the will and at the time of the testator’s death. In Morse v. Morse, 2 Sim. 485, a testator gave to his daughter, and to her children, ¿65,000 — ¿63,000 to be paid in one year after his death, and £2000 after the decease of his wife, and appointed trustees of these sums for his daughter and her children. ' It was decided that the daughter took an estate for life, with remainder over to her children, whether born before or after the death of the testator. In the case of Vaughan v. The Marquis of Headfort, 10 Simons, 639, the testator bequeathed to the Marquis of Headfort and his children ¿£40,000 to'be secured for their benefit. It was decided that the words, to be secured for their benefit, showed that the intention of the testator was that the Marquis took a life estate in the whole, with remainder over to his children. It is, .however, frequently a question of difficulty, when a devise is to one and his children, to determine whether the children were intended to take jointly with their parent, or whether they were intended to take a remainder after the life estate of the parent determined. The general rule is, that if a devise be to one and his children, and he have children at the date of the will and the death of the testator, the parent and children, living at the testator’s death, take jointly under the will. — Wild’s Case, 3 Coke’s Rep. part 6, p. 17 — see the cases collected in the 2d vol. of Jarman on Wills, pages 307-316; see, also, Parkman v. Bowdoin, 1 Sumner, 359; 15 Pickering, 104. The intention, however, of the testator is to govern in each case, and when that is ascertained, the law is ascertained; for every testator is a law-giver to the court, so far as his intentious are consistent with the laws of the land. *617Each case must therefore depend in a great measure on its own peculiar circumstances, for the inquiry is, what did this testator intend ? Here, by the words of the will, the property was devised to the husband of Mrs. Morris, to be employed in agriculture by him, or in any other manner most beneficial to his wife, Mary Morris, and that he should hand over to her the nett proceeds, for the sole and separate use and maintenance of Mary Morris and her children, and, after her death, the whole to be equally divided between such of her children as should be living at her death. It is very clear that the children, did not take an indefeasible estate, before the death of their mother; if they died in her life-time, their representatives could take nothing, for the property was not to be divided until after her death, and then only amongst those who survived her. The gift was to the husband, as trustee, the annual nett proceeds to be paid to the wife for the support of herself and her children. The true intention is, that the wife should have a life estate in the whole, and the -children should only take the remainder at her death. The words, for the support and maintenance of herself and her children, only show the reason or motive of the testator why he made the bequest, but cannot, in my opinion, reduce the share or interest of the wife, to an equal share or proportion with all her children. The gift to Mrs. Morris was complete without these words, and they do not show an intention to reduce the quantity of the legacy to her — but only the motive of the bequest.

As Mrs. Morris takes a life estate under the will, with a remainder over to her children, and as she joined with her husband in the mortgage, her interest is bound, for, although a feme covert, she had the same control over her separate estate as if she had been sole. She therefore conveyed her interest and the sale gave the purchasers such title as she had, which was an estate for her own life, with remainder to her children.

This view is decisive of the cause, and shows that the decree must be affirmed. ' The children, however, may proceed by another bill to protect their interest, after the death of their mother.

Let the decree be affirmed.

Chilton, J., not sitting.