56 Ala. 260 | Ala. | 1876
In Wild’s case, Coke’s Bep. part 6, page 17, it was resolved, that, “ If a man devises land to A and to his children or issue, and they then have issue of their bodies, there his express intent may take effect according to the rule of the common law, and no manifest and certain intent appears in the will to the contrary; and therefore, in such case, they shall have but a joint estate for life. But, * * if a man "x' * devises land to husband and wife, and after their decease to their children, or the remainder to their children; in this case, although they have not any child at the time, yet every child which they shall have after may take by way of remainder, according to the rule of law; for his intent appears, that their children should not take immediately, but after the decease of the [husband] and his wife.” In the same case, and in another place, it had been resolved, “ that if A devises his lands to B and to his children or issues, and he hath not any issue at the time of the devise, that the same is an estate-taií; for the intent of the devisor is manifest and certain, that his children or issues should take, and, as immediate devisees they cannot take, because they are not in rerum natura; and by way of remainder they can not take, for that was not his intent, for the gift is immediate ; therefore, these such words shall be taken as words of limitation.”
Following the doctrine above declared, this court, in Vanzant v. Morris, 25 Ala. 285, said: “ Where the devise is in terms immediate, and so intended by the testator, and the description of the person to take is general, there, none that do not fall within the description at the time of the testator’s death can take; therefore, the after-born must be excluded ; but, where the enjoyment of the thing devised is, by the testator’s expressed intent, not to be immediate by those among whom it is finally to be divided, but is postponed to
The language of the will construed in Vanzant v. Morris, supra, was, “My daughter Margaret, I bequeath to her and her children my slave Hannah.” The complainants, who claimed an interest with their mother in the slave Hannah and her increase, were the children of Margaret, named in the will, and were born before the will took effect by the death of the testator. Speaking of these children, and their asserted claim, our predecessors said, “ They took a joint interest in the slave Hannah and her increase.”
In the case of Thomas v. Denton, 15 Ala. 586, the language of the deed was: “I give, grant, and bequeath unto Wm. Seay and Nancy Ann Seay, together, to all the heirs of Polly Seay’s body, the sole right, title to a certain negro girl named Rose, * * with the increase, if any, equally between all the children or heirs of the body of the aforesaid Polly Seay’s; to be the only right and property of all her, the aforesaid Polly Seay’s children; which negro, I do hereby warrant and forever defend, unto the aforesaid Polly Seay’s heirs forever.” The court said, “ Conceding that the word heirs is a synonym for children, as nemo hceres viventis, still the deed vests the interest in the slave immediately in the donees, who at the time of its delivery were capable of taking; and there being no trust created by the terms of the. ..deed, it would follow that the complainants, not then in esse, could take no title under it.”
In Smith v. Ashurst, 34 Ala. 208, the will directed the conversion of certain assets into cash, and “ the whole amount be divided equally, pro rata, between my niece, Prances Ellen Johnson, and' the children of my brother, Richard C. Coker.” Richard C. Coker had children at the time the bequest took effect, and there were others born afterwards. It was held, that the after-born children did not share in the bequest. See, also, Furlow v. Merrill, 23 Ala. 705, which, in respect to the asserted remainder over, seems to be at war with the later case of Vanzant v. Morris.
On the other hand, are the following cases, each limiting, in effect, the right and enjoyment of the property, to the life of the mother or father, as the case chanced to be, and directing a division among the children, at the death of such mother or father. In some of them, there was express provision for letting in after-born children. In these it was
We consider the two classes of cases entirely reconcilable; and hence we hold, that the principles declared in the case of Vanzant v. Morris, supra, remain unaffected by any later ruling of this court.
We are referred to the case of Jackson v. Coggin, 29 Georgia, 403, as declaring a rule of construction differing from ours; and the position is taken for appellants, that, inasmuch as the deed under which complainants claim was executed in the State of Georgia, by parties then resident there, the Georgia rule must govern in its construction. Foreign laws, and foreign adjudications, to be the basis of decision by us, must be proved. We can not take judicial notice of them. — Drake v. Glover, 30 Ala. 382; Inge v. Murphy, 10 Ala. 885; Bloodgood v. Grasey, 31 Ala. 575; Sidney v. White, 12 Ala. 728. The Georgia decision was not given in evidence in the court below, and we cannot regard it as evidence in this court. It can be consulted by us, as we would consult the opinions of any other reputable Supreme Court of a sister State; but it does not bind us as an adjudication.
The deed, on which complainants rely for a recovery, is a voluntary conveyance for love and affection, made by Wm. Varner, father of complainants, then residing in Georgia, on 25th February, 1858, to Leonard H. Young, Varner’s father-in-law', as trustee for Hasletine J. Varner and her children; conveying a tract of land to him in trust, “to have and to hold the said premises to the said Leonard H. Young, as trustee of Hasletine J. Varner and her children, to her and their proper use, and exclusive benefit and behoof forever, in fee simple.” The deed to the slaves was made on the same consideration; bears date 28th December, 1857, and conveys them to said “ Hasletine J. Varner, and the heirs of her body by her present husband, Wm. Varner, and their assigns; * * * to have and to hold the said property, unto the said Hasletine J. Varner and the heirs of her .body by her said husband, and assigns, to her and their own proper use, and benefit and behoof forever.”
The words by which the slaves were conveyed, if employed in a conveyance of title to land, would have created an estate-tail at common lawr. Employed in the conveyance of personal property, they vest an absolute title in the first taker. The Code of Georgia is in evidence in this case. — See section
At the date of each of these deeds, Hasletine J. Yarner bad one child by her marriage with Wm. Yarner — Rebecca Ann Yula. This child died in tender infancy, March 22d, 1858, leaving neither brother nor sister surviving her. Young Charles, the next child of the marriage, was born January 3d, 1859. .Several children were born afterwards, who, together with Young Charles, are the only complainants in this suit. When Rebecca Ann Yula died, sbe left no descendant, and no brother or sister, or descendant of such. Her father, Wm. Yarner, inherited her estate. — Georgia Code, § 2484, subd. 5 and 6.
Under tbe rules declared above, we hold, that Haseltine J. Yarner and her then only child, Rebecca Ann Yula, took air equal, undivided interest in tbe lands conveyed by tbe deed of February 25th, 1858, and that the after-born children took no interest whatever under that deed. When Rebecca Ann Yula died, her father succeeded to her interest; and when the deed was made to Leonard H. Young — 27th January, 1860 — the lands belonged equally to Hasletine J. Yarner and Wm. Yarner, ber husband. The complainants in the present suit never had or owned any interest in the lands or slaves, and, consequently, their bill contains no equity.
Tbe decree of tbe Chancery Court is affirmed.
