Watson v. Williamson

129 Ala. 362 | Ala. | 1900

TYSON, J.

Both plaintiffs and defendant claim title to the land in controversy from a common source; the former as devisees under the will of Enos Truss, and the latter as purchaser through mesne conveyances from James 1). Truss, wbo was also a devisee under 'said will. Tlie state of the title is dependent entirely upon the construction of the will of Enos Truss, 'which was executed and probated in 1875. It is clear that the devise to his lawfully begotten heirs, of whom James 1). Truss was one, was intended to be a devise to his children; that from the entire context of the instrument the words “lawfully begotten heirs” were not used in their technical sense, but were used in the sense of children, and those words should be so read. This is manifest when we construe them in connection with that portion of the will making provision for the disposition of the share of Ms daughter, Elizabeth Clay, and also with that provision which required, that in case any portion of his estate should be taken to discharge any obligations for which the testator 'was liable on account of his children, that such amount so paid should -he deducted from the share of such child. It is true, the word heirs is here used instead of -children, but when it is made known that he was surety for three of his sons upon different ob-ligati ops at the elate of the making of the will, it is perfectly clear, that his meaning is just as we have expressed it in our reference to that provision. For should the word “heirs” be held 'to have been used in its technical .sense, this clause of the will would be meaningless. “Nomo cst luieres viventis." The indiscriminate use of tire word heirs, when it was evident that children was meant, to designate the class of persons who were to take, upon a division of the lands after the termination of the life estate of the wife of the testator, evinces that the will was drawn by one not skilled in the drawing of such instruments, unacquainted with their forms, and unacquainted with the technical meaning and force of the expressions employed. Where- this is the case, greater latitude of construction must be indulged, than where the instrument is drawn by a person acquainted with the meaning of the technical phrases and words used.—May v. Ritchie, 65 Ala. 602; Campbell v. Noble, 110 Ala 382.

We also think it is clear that James I). Truss, the son of the testator, only took a life estate in the lands, and that at his death, his heirs took the fee. This seems to us quite plain from tlie language of the will, and there is no room for the'contention that he took a fee tail, which under section 1Q21 of the Code is enlarged into a fee simple. Here the remainder is limited to the lawful heirs of James I). Truss, to whom a life estate in the same land was given, and upon the termination of his life estate, the plaintiffs, who are shown to be his lawful heirs, take as purchasers by virtue of such remainder- — an estate protected and preserved by section 1025 of the Code. Wilson v. Alston, 122 Ala. 630.

The proceedings in the chancery court did not charge the share of James 11. Truss, the son of the testator, with the debt which he owed to his ward, Coleman, for which his father was surety, and therefore did not condemn his sharc> of the land. That proceeding is not a muniment of title for the defendant, and under the conveyances through which he claims title, he only acquired a life estate in the land. The life tenant having died, in 1899, the plaintiffs having the fee simple title and a right to the possession of the land, the court properly rendered judgment in their favor.—Pickett v. Pope 74 Ala. 122.

Affirmed.