47 So. 220 | Ala. | 1908
— The only question presented on this appeal is one of construction of the will and codicils thereto of Mrs. Bocock. This identical question was passed upon on former appeal, and the views and decision of the court announced in Smith v. Smith. 139 Ala. 406, 36 South. 616. A careful reconsideration of the matter leads to the conclusion that the former decision was well rendered, and on that authority the decree appealed from is affirmed.
Affirmed.
— I cannot agree to an affirmance of this case upon the conclusion reached by the court upon the former appeal when this case ivas here before, and which is reported in 139 Ala. 406, 36 South. 616. I do not question the rule as laid down by the authorities quoted and cited in the opinion, as they fix the termination upon the death of the testator, only in the absence of a contrary intent. I think the codicil of the will expresses a contrary intent, and one just the opposite to what was held in the former opinion. “The cardinal rule, and one above all others, for the construction of wills, is to ascertain the intention of the testator and give it effect, if not prohibited by law.” —Campbell v. Weakley, 121 Ala. 64, 25 South. 694; Wolffe v. Loeb, 98 Ala. 426, 13 South. 744. I am not unmindful of section 1020 of the Code of 1896, Avhich says: “Every estate in lands is to be taken as a fee simple, although the words necessary to create an estate of inheritance are not used, unless it clearly appears that a less estate was intended.” This court, in the case of Whorton v. Morange, 62 Ala. 209, in considering this statute and considering its influence upon the construction of wills, speaking through Brickell, C. J., said: “Greater liberality of construction of devises and of wills is necessarily indulged than of deeds and other instruments Avhich transfer the title to property, real or personal. They are often drawn most unskillfully, in the absence of counsel, and are confused or loose and inaccurate in expression. So much depends on the Avords, arrangement, and circumstances of each particular instrument that it was said more than two centuries ago that cases upon walls had no brothers. The authority of decisions as to the interpretation of wills, so far as they may he applied to
While the foregoing rule has been often quoted by decisions of the land, many of them seem to regard it as an ancient theory unworthy of practical operation, when it has become necessary to vest a. fee in the immediate taker and thus defeat the remainder, notwithstanding our statute has thrown every obstacle against the creation of perpetuities. Indeed, this rule has been so often disregarded that professional men, as well as the average layman, have almost reached the conclusion that the entailmen-t of property, even where it does not violate the statute against perpetuities, is almost impossible. The construction of the will in the case at bar is an apt illus
Again, we find her making provision for a home on the land for the widow of a nephew. If she intended to devise a fee-simple estate to the nephew, why was it necessary to provide a home for his widow? To hold that Mrs.
The chancellor erred in decreeing the widow of Cliff A. Smith any interest in the land other than the pasture land, and the decree of the chancery court is reversed, and one is here rendered denying complainant relief as to tht land other than the pasture land, and the cause is remanded.
recedes from his former conclusion, and concurs with the writer and SIMPSON and DEN-SON, JJ., in granting the application for rehearing and in adopting the foregoing as the opinion of the court.
adhere to their former conclusion, and are opposed to granting appellant’s application for rehearing, and dissent.
On Appellee’s Application for Rehearing.
— We have carefully considered the able and elaborate briefs filed for and against the application for the rehearing made by the appellee, and are
The testatrix having made a will, and being some years afterwards dissatisfied with it, declared in a codicil a deliberate purpose to change it, which she at once proceeded to do. This emphasizes the change, and is a caution to the courts to observe with care the mandates of the codicil embodying the change. —Croizer v. Bray, 120 N. Y. 374, 24 N. E. 712. The will gave a fee to the two nephews equally. The change is that their several children living at their death shall take their several parts in' fee simple. This created contingent remainders for the children until birth, and vested remainders as born, subject to divestiture by death before the parent, and cut down the fee of the nephews to a life estate.— Smaw v. Young, 109 Ala. 528, 20 South. 370; Smith v. Bell, 6 Pet. (U. S.) 68, 8 L. Ed. 322; Croxall v. Sherrerd, 5 Wall. (U. S.) 288, 18 L. Ed. 572. The codicil further proceeds to provide an alternate or substitutionary devise, to take the place of that to the children, in default of any living at the death of the ancestor, by saying, if either nephew died without leaving children
The question of the death or time to which the surviving between the brothers relates has been argued with great eagerness by the appellee’s counsel, as if :it was a doubtful point and involved in this case. If it were involved, we think its solution is indicated by the plain language of the will, and not less so by the authorities. Jarman on Wills (chapter 47) says it has been settled ever since the time of Lord Thurlow. —Cripps v. Wolcott, 4 Madd. 11, decided in 1819, and the Case of Gregson, 2 De G., J. & Smith, 428, decided in 1864, are the
The appellants insist “that there are many cases upon the construction of documents (and of wills, particularly) in which the spirit is strong enough to overcome the letter — cases in which it is impossible for a reasonable being, upon a careful perusal of an instrument, not to be satisfied from its contents that a literal, a strict, or an ordinary interpretation given to particular passages would disappoint and defeat the intention with which the instrument, read as a whole, persuades and convinces him that it was framed, and (that) aman so convinced is authorized and bound to construe the writing ascordingly”; and they cite Key v. Key, 4 De G. M. & G. 73, Sweating v. Prideaux, L. R. 2 Ch. Div. 1875-76, 415, Towns v. Wentworth, 11 Moore, P. C. 526-543, Graham v. DeYampert, 106 Ala. 279, 17 South. 355, and Smith v. Bell, 6 Pet. (U. S.) 68, 8 L. Ed. 322, as authorities recognizing this power and duty in the court to carry out the intent of the testator. And, relying on this obvious truth, the appellants cite a long and unbroken line of authorities where, in just such a limitation as
We have read the cases cited, and we find none, and are cited to none, which meet or controvert the sound good sense upon which they proceed, and we adopt their conclusion — that in all cases where there are limitations to two for life, with remainders to their children, and in default of children of either to the “survivor” or “surviving brother,” with a limitation over on both dying without children, cross-remainders are intended and necessarially implied between the strips of the life tenants, and that “surviving” or surviving brother” must be read “other” or “other brother,” and thus that the share of Clifford A. Smith in this case, on his death without children, went, as we have held, to the child of the other brother, though he did not actually survive Clifford. We do not repeat or go over the reasoning of the cases in which Ave concur, but cite some of the leading authorities in which the above views are expressed '. —Badger v. Gregory, L. R. 8. Eq. 78; Waite v. Littlewood, L. R. 8 Ch. App. 70; Wake v. Verah, 2 Ch. D. 348; Doe v. Wainewright, 5 Term, 427; Doe v. Webb, 1 Taunt. 224; Lucena
In this case it is impossible not to see from the will, taken as a whole, that the testatrix intended to give the shares of both nephews to the children of either or both as long as there were any to take, and supposed she had done so, and then limited the property over under the twelfth clause only on the failure of children to either of the nephews; and we think she has done so by appropriate language. Moreover, the limitations being between two only, a direction that, on failure as to children by one, the share of that one should go to the “surviving” brother, was a mere description or designation of the person who was to take. It was not intended to attach a condition in the use of “surviving,” and it necessarily referred to “the other” brother. As a designation or name of the other brother, “surviving” may be, and should be, eliminated to serve the plain intent, as when a person or thing is designated in several ways, and some of them are wrong. —Home for Incurables v. Noble, 172 U. S. 383, 19 Sup, Ct. 226, 43 L. Ed. 486; Anderson v. Bertley, L. R. (1902) Ch. D. 939; Garland v. Beverley, L. R. (1878) 9 Ch. Div. 212; Harman v. Dickenson, 1 B. Ch. Cases, 91.
As to the remaining question about “a home” for appellee on the premises, that is not raised in the bill; and, if it had been, it could not be enforced without putting the appellants in default in some way, which is not done.
Application for rehearing is denied.