130 Ala. 555 | Ala. | 1900
No question is raised in the case as to any matter to settle which the hill was filed, except one. The defendant, Annie B. Tompkins, the widow of the testator, Henry 0. Tompkins, alone appears and assigns error. Hem counsel states: “There is but one question in this case, and that is whether the testator in Iris will, fixed the value of the separate estate of appellant at $3,050. If not, 'then we concede that it [her separate estate] must be taken at its actual value at the time of the death of the testator. The bill alleges that the said separate estate was worth $8,000, and the construction of the will on this point involves the difference between the two amounts named. We contend, that the plain intention of the testator was, to fix the value of the widow’s separate estate at $3,050, for the purpose of determining' her interest in the estate.” It is not disputed that the amounts received by the defendant on policies on testator’s life for her benefit, and which were paid to her soon after his death, are to be estimated in determining her interest.
The second clause of the will is: “My wife [has] an estate- of her own, the same being money received by me belonging to her, amounting to three thousand and fifty dollars; if that should not be paid before my death, I desire it paid immediately thereafter; she will also be entitled to certain moneys from certain insurance policies on my life. I desire my executors, as soon as practicable after my death, to turn over to her out of any moneys belonging to my estate from insurance on my
“It is my toill that she should receive of [my] estate, just what she would he entitled to under the provisions of sections 2354 and 2355 of the Code of Alabama of 1886.” These sections were carried into the Code of 1896 as sections 1506 and 1507.
It must be admitted, that if the testator had stopped in this item of his will, short of the last clause therein, —which for convenient reference we italicize, — and had not included that 'danse therein, as the last expression of his wish in reference to the matter in hand, there would be reason for holding that he desired to fix the amount of the separate estate held by his wife, at $3,050$ which sum should be taken, — including the amount paid to her on the policies on his life, — as her separate estate for the purpose of determining- her interest on distribution in his estate. ITe says: “My wife has an estate of her own, the same being,” etc. Again he directs his executors to pay over to her “any moneys belonging to my estate from insurance on my life or other sources, so much as may be necessary to make the amount she shall receive, including such separate estate and the amounts” received from insurances, “equal to what would have been her dower interest and distributive share in my estate, if she should have no separate estate and should receive no insurance money.” But, taken in connection with the last clause, it would seem, that the testator intended it to be understood, without reference to any other separate estate his wife might own at his death, that the separate estate he mentions, and the insurance moneys he refers to, should enter into the estimate in determining her dower interest and distributive share in his estate; but if he intended that no other separate estate she might own at his death, except this, should enter into this estimate, he would have said no more than was said in said first clause, and
Affirmed.
