115 Ala. 328 | Ala. | 1896
The devise in the will of A. F. . Vandiver, deceased, of all his “upland” to his wife, Jane C. Vandiver, is not void on its face for uncertainty. Whatever upland the testator owned, or whatever of his land it can be shown he had in mind and intended to dispose of by describing it as “upland” passes to Mrs. Vandiver under the will. There being evidence tending to show that he owned no uplands, strictly so called, but that his lands were in part “bottom” lands and for the rest “second bottom or bench” lands, a case of latent ambiguity was developed in attempting to apply his will to the subject-matter with which it dealt; and it was entirely competent to cure this ambiguity by showing that he regarded second bottom or bench lands as uplands, and in that sense employed the term “upland” in his will. Evidence of his declarations at the time of making
The expression in the will: ‘T want my place rented and divided among the heirs of this my last will and testament,” must be taken in connection with all other provisions of the instrument and can not be so interpreted as to defeat the unequivocal devises made by the will. Its meaning, so considered, probably is that the testator desired so much of the place as had not been specially devised to be rented, &c., &c.
The court did not err in admitting in evidence, along with the testimony of the surveyor, the plat of the land surveyed by him. This plat was not offered under section 939 of the Code, nor does it depend upon that section for its competency; but it was well received as a part of and proven by the testimony of the surveyor who surveyed the land and put upon this paper the lines of his survey.
Some of the charges given by the court might have ' been properly refused, perhaps, because argumentative, but no reversible error was committed in giving any of them.
It may be said that the leading question in all cases which involve the construction or interpretation of a will is "what did the testator intend” by the language he employed; and certainly the leading question in this case was, as stated by the court in its oral charge, what did the testator intend by the word "upland.”
The will shows title in the plaintiff and right to immediate possession. It could not possibly, therefore, show color of title in the defendant. Nor was the judgment against this plaintiff in a former action for this land, prosecuted against the executor of the will, color of title in the defendant holding as administrator cle bonis non with the will annexed. The charges requested by defendant, claiming exemption from liability for rent beyond a year under section 2706 of the Code were properly refused.
The other charges refused to defendant were bad under the views we have expressed as to the meaning and effect of the will.
Affirmed.
