Harrison v. Foster , 9 Ala. 955 ( 1846 )

GOLDTHWAITE, J.

There is great difficulty in laying down rules, by which wills shall be construed under all circumstances, because when the intention of the testator is conformable to law, that must govern. It is only when the terms of the will are so obscure or ambiguous that the intention cannot be certainly ascertained that rules are of much use. When therefore, we find decisions declaring there can be no remainder created of a chattel which is ordinai’ily consumable in its use, we are constrained to consider them as applying chiefly, if not entirely, to the particular cases then examined. If the intention is clearly expressed to create such a remainder, there seems no legal impediment to doing so. The case of Hazle v. Baradale, 1 Eq. Ca. Ab. 361, is illustrative of the legality of such a bequest, and shews also what inferences arise when the bequest is general instead of special. It was a general bequest by a farmer, of his stock (which consisted of corn, hay, cattle, &c.) to his wife for life, and after her death to another. The bequest over was held good, but if any of the cattle were worn out in using, the first taker was considered not answerable for them ; but if any were sold as useless, he was to answer for their value at the time of sale. The case of Howe v. Dartmouth (7 Vesey, 137,) shews, that when the testator provides for the manner in which the life-estate is to be enjoyed, the bequest is withdrawn from the general rule, that the tenant for life and the remainder man are to be equally protected. Lord Eldon says, “ Tho estate is given as all his personal estate, and the mode in which he (the testator) says it is to be enjoyed, is to one for life, and to the others afterwards ; and unless the testator directs the mode, so that the perishable part shall continue as it was, the Court understands that it shall be put in such a state that the others may enjoy it after the decease of the first.” The principle thus stated, is clear and obvious to every one — a bequest of perishable chattels to one for life, with remainder to another, without some direction as to the mode oí enjoyment, shews the intention of the testator that each taker shall have the same mode of enjoyment, and this can only be by a sale of the chattel, or by charging the first taker with the value. This, in effect, is the general rule, stated in Porter v. Tourney, 3 Vesey, 311, and Randall v. Russell, 3 Merrivale, 190; though the qualification of the rule by the intention of the testator is not stated, nor was it necessary to be stated, as in neither case was the point presented for decision.

The case of Madder v. Madder, (2 Leigh, 277,) is one where the general rule was governed by the intention as gathered from the whole will; and Smith v. Barham (2 Devereux Eq. 420,) is a will where there was no apparent intention to control the general bequest.

The decision in Robinson v. Collier, (1 Hill’s Eq. 370,) certainly seems irreconcileable with the principle as stated by Lord Eldon; for, in our judgment, the testator there seems to have disregarded the manner in which the estate for life should be enjoyed ;jbut the decision turns upon the supposed distinction between a specific bequest, and the bequest of a general estate, or a general residuum. This distinction seems to rest on the obiter dicta of Lord Alvanley and Sir William Grant, in the cases of Porter v. Tournay, and Randall v. Russell, previously cited; but it is denied in Madder v. Madder, before cited, and Evans v. Inglehart, (8 G. & J. 171.) For ourselves, we are entirely satisfied the true principle is stated by Lord Eldon in Plowe v. Dartmouth, previous^ quoted, and that when the intention is otherwise clear, it makes no difference whether the bequest is specific, or general, or of a residuum, It comes then to an enquiry as to the intention of the testator, and when the will in this case is thus tested, there can be but one opinion, tie evidently intended only so much of his stock, or loose property to be sold, as would pay his debts; the remainder was given to his wife for life or widowhood, to use in any necessary or lawful way— to dispose of it for her convenience or for her necessary use. She was even authorized to sell it for a valuation, and the meaning of this term is sufficiently explained by a subsequent clause, when he provides, if his wife should marry, she might be at liberty to take any choice slaves at a valuation. It is clear, we think, the testator intended his wife should have the entire use of all his chattels, and that this use was to be in accordance with the custom of the country.

It would seem to follow, that every thing of the original stock remaining in specie at the death of Mrs. Foster, was distributable between her personal representatives and the legatees under the' will of her husband, and that her executors are not chargeable with the perishable articles, except so far as they come to then-hands, or so far as sold by her, not for her convenience or peces■sary use.

The decree being inconsistent with this view of the law, must be reversed, and a new account taken or the one confirmed, reformed so as to carry out this opinion.

Decree reversed and remanded.