65 Ala. 111 | Ala. | 1880
— The administrator was charged, against his objection and exception, with three years’ rents of certain lands; and that is the sole question presented by the assignments of error. We pass over, as not raised by the facts, all consideration of the character and interest intestate would have taken under the deed, if he had married subsequent to its execution. He did not marry, and died, never having had a wife or descendant. The question is, do the next of kin, heirs at law of intestate, take by descent from him, or do they take as purchasers from their mother, the grantor ? The decree of the Probate Court affirmed the former of these propositions.
The language of the deed is, “ But should he (intestate) die without a wife, or children, or child, then it (the land) shall pass according to the statutes of descent and distribution of the State of Alabama now in force.” The argument of appellee gives to these words no meaning or operation whatever; for, if they had been omitted, M. D. Robinson, the grantee, would have taken a fee, subject to be defeated if he subsequently married. — Code of 1876, § 2178. We think the last three words of the clause copied above are the key to the grantor’s meaning. If the grantee died without wife or child, then the land was to pass, not according to the law of descents that may be then in force. That might be construed to intend inheritance or descent fronqthe grantee so dying. The language is, “ shall pass according to the statutes of descent now in force.” It was competent for the legislature to change the statutes of descent. Suppose they had done so, between, the making of the deed, and the death of the grantee. Would it, or could it be contended, that these lands would pass by descent under the new statute ? Such claim would expunge from the deed the words “ now in force.” Will it be contended that, in that event, the lands would descend according to the statutes in force when the deed was made ? That could not be, for, in the event supposed, that statute would have been repealed. The law can not cast the title, according to the terms of a statute which had ceased to exist before the happening of the event upon which its powers are invoked. Mrs. Robinson, having unlimited power of disposition, directed who should take, in the event which has happened. They were, and are, the persons who would fill the relation of next of kin — heirs at law — at the grantee’s death, according to the principles of
We hold, that the brothers and sister of intestate take as purchasers under the deed of Mrs. Robinson, and not by inheritance from M. D. Robinson.
Reversed and remanded.
