151 So. 874 | Ala. | 1933
The right of construction of this will was declared in Reid et al. v. Armistead et al.,
The lower court not having construed the will on appeal from a decree overruling the demurrer to the bill for construction, and the affirmance thereof, the will was not construed on first appeal. Carroll v. Richardson,
The will and codicil to be construed are in the following language, the paragraphs and italics being supplied for the purpose of a more convenient reference:
"I, James W. Armistead, of Clarke County, Alabama, make and publish this as my last will and testament.
"First, — I desire that all my debts shall be paid.
"Second, — As my wife has a separate estate sufficient to keep her from want, I make no provision for her, except that Idesire that she in connection and together with any of mydaughters who may be single shall remain on and occupy myhomestead so long as she may live, being supported so long as she remains there, out of the income of my property.
"Third, — I will and bequeath all of my property of whatsoever description to my daughters, Eugenie, Willie, Emma and Myrtie, Lillie and May, except that Lillie and May shalltake no interest until the other daughters shall either marryor die.
"Fourth, — It is my will and desire that none of my realestate shall be sold so long as any of my daughters remainsingle, and that those who remain single shall have the use ofand income from my property, so long as they may live to theexclusion of those who shall marry.
"Fifth, — Should any of the above named devisees die withoutissue then her share shall descend to the others herein named. But should any of them die leaving issue then her interestshall descend to her children.
"Sixth, — I hereby nominate and appoint my daughters, Willie and Emma as executrices of this will, but bond is expressly waived.
"In witness whereof, I have hereunto set my hand and seal this 5th day of November, 1897."
On January 21, 1905, said testator executed a codicil which is as follows:
"I, J. W. Armistead, being of sound mind and disposing memory, hereby make and declare *77 this to be my codicil to my last will and testament, dated November 5th, 1897, and attested by Wm. D. Dunn and W. W. Daffin as subscribing witnesses.
"Item 1. I hereby revoke item Four of my said last will andtestament, above referred to and in lieu thereof I hereby give, devise and bequeath to my daughter, Lillian Lee Farrior, who has been deserted by her husband and any of my daughters whomay be single at my death, the use and income from my propertyin equal shares, to the exclusion of those who shall marry.This right to the use and income from my property shall beenjoyed by them as long as they may live.
"It is my will and desire that none of my real estate shall be sold, so long as any of my daughters remain single orLillian Lee Farrior remains a widow.
"Given under my hand and seal this the 21 day of January, 1905."
The appellees filed their bill to have this will construed, and to determine the present status of the title to the lands which were owned by the said J. W. Armistead at the time of his death; claiming that a fee-simple title to the lands vested at testator's death, under the terms of said will, in the six daughters named, excepting only that the right of the said Lillie and May to share in the possession of said lands, or the use thereof, was deferred until the other daughters hadeither married or died. Complainants further contend that the title thus vested in said daughters being a fee-simple title, the restrictions against alienation of said lands incorporated in said will and the codicil thereto are unreasonable and void, being inconsistent with the enjoyment of the rights incident to a fee-simple estate. The further contention of complainants in said bill is that, if they are not seized of a fee-simple title in said lands, they are entitled during their lifetimes to such income as an estate of this size and character should be made to produce, and pray that said property be sold, and the proceeds of sale invested in other property, or in interest-bearing securities in such manner as to produce some income. Complainants further allege that said property cannot be equitably divided or partitioned without a sale thereof; they pray for sale among joint tenants.
A careful consideration of this will and codicil is to be looked to for the disclosure of the testator's intent. And this prevails when ascertained within the rules. Ralls v. Johnson,
"The first and great rule in the exposition of wills, to which all other rules must bend, is, that the intention of the testator, expressed in his will, shall prevail, provided it be consistent with the rules of law. [Davie v. Stevens] 1 Doug. 322; [Perrin v. Blake] 1 W. Bl. 672. This principle is generally asserted in the construction of every testamentary disposition. It is emphatically the will of the person who makes it, and is defined to be 'the legal declaration of a man's intentions, which he wills to be performed after his death.' 2 Bl. Com. 499. These intentions are to be collected from his words, and ought to be carried into effect, if they be consistent with law.
"In the construction of ambiguous expressions, the situation of the parties may very properly be taken into view. The ties which connect the testator with his legatees, the affection subsisting between them, the motives which may reasonably be supposed to operate with him, and to influence him in the disposition of his property, are all entitled to consideration, in expounding doubtful words, and ascertaining the meaning in which the testator used them."
When the will and codicil are construed within the four corners thereof, no doubt can be entertained but that testator's intent was that his lands be not sold so long as one of his daughters remained single, and that this limitation or futurity is a material part and substance of and inheres in the gift; and this is stated in no uncertain terms or language that is carried through the whole of the two instruments. Bingham v. Sumner,
Having thus provided by the codicil for Lillian Lee Farrior so long as she remained unmarried, and for the others or any of the named daughters "who may be single at my (his) death * * * to the exclusion of those who shall marry," the testator provided by the fifth paragraph that: "Should any of the abovenamed devisees die without issue then her share shall descendto the others herein named. But should any of them die leavingissue then her interest shall descend to her children." (Italics supplied.)
It is thus clearly apparent that the sale of this property for any purpose and by any process of the interested parties would do violence to the several expressed provisions of Mr. Armistead's will, as we have indicated above.
The postponement of the right of enjoyment of the use of the property as to Lillie and May explained why the fifth paragraph of the will was inserted and the office it served; thus appellees were not given a fee-simple title in undivided interests in that property, together with a life estate in the whole of it, but each took a base, qualified, or determinable fee which was subject to divestiture by death without lawful issue. Section 6921, Code; Montgomery et al. v. Wilson et al.,
If anything further is necessary, it may be observed that the testator had the right to dispose of his estate with such limitations and restrictions as he saw fit to impose, if not repugnant to law. Section 6921, Code; Pearce v. Pearce, supra; Hill v. Jones,
It has been often stated that this court has no authority to make a will for a testatrix to meet the recent changed conditions of the income from the estate as it affects the elderly unmarried ladies filing the bill. Ashurst et al. v. Ashurst,
The sale of the land was restricted, and the contingencies or events fixed within the law by testator had not taken place. And *79
it is not contended, nor can it be asserted with authority, that any provision of this will offends the rule against perpetuities. Section 6922, Code; Crawford et al. v. Carlisle,
The decree of the circuit court in construction of the will is not in accord with the view we have indicated, and erred in ordering the property sold for division. The decree is reversed, and the cause is remanded.
Reversed and remanded.
ANDERSON, C. J., and BROWN and KNIGHT, JJ., concur.