Smith v. Turpin

109 Ala. 689 | Ala. | 1895

COLEMAN, J.

The appellee Turpin, by mesne conveyance from Marie L. Smith, claims to hold the legal and equitable title to a certain tract of land, the subject of controversy in this litigation. The ownership and x-ight of Marie L. Smith to convey the land involve the construction of an antenuptial contract and conveyance to her, made by James Q,. Smith, the father of complainant, but who died before the conveyance by the grantee, Maxüe L. Smith, was executed. The cardinal rule, which predominates all others, in construing contracts, deeds, or devises, is to ascertain the intention of the parties, and give effect to their intention. Principles of law for the execution of trusts and of powers, recognized and declared by courts, as well as statutory enactments, are intended to aid in the ascertainment and eixforcement of the intention of parties making them; and whatever may be the form of expression, or words used, they must yield to the cardinal rule, rather than the intention' should be defeated. The preamble to the antenuptial contract and conveyance is, ‘ ‘That whereas a marriage is about to be solemnized between the party of the first part, and second part; and it being desirable that a px’Ovision should be made by the party of the first part for the maincenance and support of the party of the second part, and any child or children she may have of said marriage.” It is very clear from this statement that the party of the first part intended to provide for the maintenance and support of any child or children of the marriage, as for the party of the second part herself. The contract and conveyance then proceeds : “In con-, sideration of said marxúage, for the maintenance and support of the party of the second part, and of any child or children she may have of said marriage, doth bargain, sell and convey unto the party of the second part [describing the lands]. To have and to hold to the party of the second part for the purposes befox-e stated.” It further provides, “that if said property herein conveyed, or its representative, in the hands of the party of the second part, should not not be disposed of before the death of the party of the second part, then after her death to the child or children of said marriage, and if there be no child or children of said marriage, then the party of the second part may dispose of the same by will,” &c. The complainant is a child of said marriage, and the grantee is still living. Certainly upon the birth of the child, “the land conveyed, or its representative," not disposed of before the death of the party of the second part,” was charged with the support and maintenance of the child, during her lifetime, and after her death, the child surviving her, it vested in him. We are.satisfied that the language of the contract, and the evident purpose of the grantor, admits of this construction and of no other. After the death of the grantor, and while the child was living, the grantee sold the land, and thereby deprived the child of its support and maintenance from the land, and the question is whether she acquired by the deed an interest and authority to enable her to make such disposition of the land. The deed contains the following provision, from which the contention arises. “The party of the second part is expressly empowed- to sell all or any of said property for cash or on credit, and to reinvest the proceeds in other property, or securities, and she may exchange the same or any part thereof, for other like property or securities in writing, with the consent of the party of the first part, and all other property so received or investments made shall be subject to the use and purposes heretofore stated,” &c. It would be a perversion of language, as well as doing violence to the intention of the grantor, to hold that the party of the second part had authority by virtue of, this provision to sell or exchange the property during the lifetime of the grantor, without his consent, when it is expressly stated that it may be done with his consent.

Was the property right of the wife, and her power of disposition, enlarged by subsequent-legislation or the death of the husband? In the case of the Memphis & Charleston Railroad Co. v. Bynum, 92 Ala. 335, this court held that the rights of the husband and wife, fixed by an antenuptial contract, were not affected by the married woman’s law, and that the legislature had no power to alter contractual rights acquired before the adoption of the act. We find no provision in the contract that the death of the grantor should discharge the burden or trust placed upon the land, for the support and maintenance of a child born of-the marriage. We find no provision that, by the death of the grantor, the estate of the party of the second part should be freed from the support and maintenance of a child of the marriage. It seems evident that the intention of the grantor was, that if the land was not disposed of during his lifetime, which could not be done without his consent, either for investment or for an exchange of other property, and there was a child of the marriage, the child should be supported and maintained from the land, and if the child survived the party of the second part, the land was to become to property of such child. No other construction will give effect to the whole instrument and the intention of the grantor, manifested from the preamble to the conclusion. There was no independent power of disposal vested in the grantee, nor could the estate created in her by the conveyance become absolute with the power of disposal except from and "after the death of the grantor, and a failure of a child or children of the marriage, or the death of such child or children, if any were born. A child having been born of the marriage, the death of the grantor terminated the power of disposition, at least during his lifetime and minority. March v. England, 65 Ala. 282; Perry on Trusts, § 784; 18 Am. & Eng. Ency. of Law, p. 979, notes and authorities .

It follows from what has been said that the demurrer to the bill was not well taken, and should have been overruled.

Reversed and remanded.

Head, J., not-sitting..