Huckabee v. Swoope , 20 Ala. 491 ( 1852 )

LIGON, J.

The first question presented for our consideration arises on the demurrer to the bill for want of equity; should this be sustained, the case is at an end.

The bill is filed by the complainant below, as one of the legatees under the will of Henry S. Mason, deceased, to enforce the payment of a legacy. The clause of the will under which she claims is in these words: “I also wish that my sister-in-law, Sarah A. Swoope, be considered as one of my heirs so far (as) a support, but npt as a legal heir to a part of my estate: Provided, she lives single and in my family.” The complainant charges in her bill that she is still single, but has been forced by unkindness to leave the mansion house and children of testator; that his widow has married one Bushrod W. Bell, who has taken possession of the homestead and control of testator’s children, and by his unkindness she has been unwillingly compelled to abandon both.

That a legatee has a right to come into a court of equity to compel payment of his legacy from a refractory executor, is a proposition which we do not understand to be denied on the part of the plaintiff in error. But it is contended, that the complainant, by leaving the family of the testator under the circumstances named in the bill, violated one of the conditions upon which she was to continue in the enjoyment of the bequest in her favor, and forfeited her legacy.

The rule is, that if the enjoyment of a legacy is made to depend upon a condition subsequent, and the performance of that condition depends alone upon the legatee, who has the power to do what is required to be done, but fails to do it, sucb failure will work a forfeiture of tbe legacy. But is tbis tbe case bere? By tbe allegations of tbe bill, to wbicb alone we can look under tbe demurrer for want of equity, tbe very reverse of tbis state of case is presented. For three years tbe complainant faithfully performed tbe conditions imposed, and enjoyed tbe bequest in her favor. At tbe end of that time a new bead is placed over tbe family of the'testator, and tbis, too, without either her agency or consent. He takes control, and in tbe exercise of bis power as master of his family, be casts her furniture out tbe bouse in her absence from borne, locks tbe door against her, and orders that, on her return, she is not to be admitted. We can see no analogy, whatever, between tbe facts of tbis case and those of any case in wbicb tbe failure to perform a condition subsequent has been held to operate tbe forfeiture of a legacy.

It is also contended, that by tbe marriage of the widow with Bell, tbe “family” of tbe testator was extinguished, and thus tbe condition becoming impossible, tbe legacy to tbe complainant fails, or is void. It is needless, at tbis point of tbe case, to examine to what extent, if any, tbe legacy of tbe complainant would be affected by tbe fact, that one of tbe conditions upon wbicb she was to continue in its enjoyment bad become impossible, after her right to it bad vested, and she had enjoyed it; since, according to our view of tbe meaning of tbe word “family,” as used by tbe testator, it still exists, and will continue to exist until tbe time appointed by him for its dissolution. To limit its signification to tbe testator’s wife and children, would do violence alike to bis intention and to tbe etymology of tbe word. It has no fixed, tecN nical, legal sense. When employed in a will, tbe English Court have sometimes held it to mean “heir,” at others “children,” and in others “widow and children.” 2 Jar. on Wills 25; Story’s Eq. §1065-6. In every case, however, those courts have defined it in that manner, wbicb, in their opinion, best comported with tbe intention of tbe testator. We will adopt tbe same rule in tbis case, believing it to be tbe only safe and proper one.

Tbe word occurs in three several clauses in tbe will before us: First, in that containing tbe bequest to tbe complainant; second, in tbe clause wbicb immediately succeeds it, and in wbicb he directs his executor to collect the debts due him, “ and to apply said moneys to the purchase of negroes or stock for the benefit of my plantation and familythird, in the last clause, which is in these words, “It is also my wish that my family be well supported, in health and sickness, out of the proceeds of my plantation and other effects.”

In all these instances, we apprehend the testator intended to include the white, as well as the slave members of his household. The will is written very inartificially, and doubtless the testator intended to employ the words used in their ordinary sense; and in this State the term family, in common parlance, comprehends not only the wife and children of the master, but his slaves also. To include the latter, not only does no violence to the etymology of the term, but is in strict conformity to it. Over this family, and in its management, the executor is substituted for the master, and while his power to keep it together, and employ its operatives for the common benefit, continues, it exists in legal contemplation, as well as in fact. By the terms of this will, the executor is required thus to control it, until the oldest child becomes of age or marries. Then, and not until then, did the testator intend that his family should be dissolved, and we are inclined to think, that at that period also, he intended that the provision made for the defendant in error should cease.

The bill does not show that this event has happened, by which the right of complainant to a support would be at an end, and therefore there is no hindrance to the complainant in coming into a court of chancery to assert her rights.

Our conclusion is, that the demurrer for want of equity is not well founded.

The demurrer for want of proper parties defendant, cannot be sustained. Bell and wife should not have been joined with the administrator with the will annexed, since they have no interest in the fund sought to be charged with the payment of the legacy of complainant; for it appears that the portion of the testator’s estate to which Mrs. Bell was entitled, had been allotted to her before the bill was filed, and separated from the bulk of it in the hands of the plaintiff in error. Neither do we regard the infant children of the testator as necessary parties, as the administrator with the will annexed was in charge, under tbe will, of tbe estate sought to be subjected, and bad fall power, as trustee, to protect tbeir interest. 1 Dan. Cbj. Prac. 302 ; Story’s Eq. Pl. § 140.

Tbe Chancellor, therefore, did not err in overruling tbe demurrer.

In discussing tbe questions arising on tbe demurrer, we have been compelled, in a great measure, to examine tbe whole merits of tbe case, for neither tbe answer nor proof puts any new phase upon tbe point really at issue. Tbe testimony, however, shows that tbe complainant was a single lady, tbe sister of tbe testator’s wife, for several years an acceptable and valued member of bis family, with no protector except himself, and no means of support but such as she derived from bis bounty. She is known, also, to have been kind and attentive to bis children, especially to one of them who was lame, decrepit and diseased. Under these circumstances, though no legal obligation rested upon him to do so> yet it is by no means extraordinary, that tbe testator should, out of bis ample means, provide for her a support, at least so long as bis children were minors, and leave her afterwards to tbe kindness and protection of those whose infancy she bad watched over and nursed, whose affections she bad won, and whose gratitude, in mature years, would extend to her in age tbe support she might need and tbe protection she might require.

W e think a fair construction and interpretation of tbe will shows, that this was what tbe testator intended to do. He wishes bis executor to keep up bis plantation, but leaves this to bis discretion. He then provides for tbe education of bis children at tbe best schools, and devotes tbe proceeds of bis plantation for that purpose; “ and that there shall be no division of my property until my oldest child shall become of age or marry; and in tbe event of my wife’s marriage after my death, it is my wish that my property shall be divided according to law, and she to receive her lawful right of all my effects, and tbe balance to remain in tbe bands of my executor until my oldest-becomes of age or marries, at which time I wish my property equally divided between my children then living.” Tbe next clause contains tbe provision in favor of tbe defendant in error, which has already been quoted, and need not be bere repeated. Tbe next directs bis executor to collect tbe debts due bim, and purchase negroes and stock for tbe plantation and family; then follows tbe last, which has been once copied in this opinion, and directs tbe executor to support bis family well out of tbe proceeds of bis “ plantation and other effects.”

To say that be intended tbe provision made for tbe support of bis family to cease on tbe marriage of bis widow, is wholly unauthorized. He devotes a fund to this purpose, tbe proceeds of plantation and other effects, and in other parts of tbe will, be desires that bis property should be kept together until bis oldest child becomes of age or marries, thus fixing, beyond a well-founded doubt, tbe period at which this provision should cease. At this period be directs that bis property shall pass absolutely to bis children, to be held by them in their own right; and at this period, too, both bis estate and bis family, in tbe sense of tbe will, are, by bis appointment and direction, dissolved forever.

He wishes tbe defendant in error to be considered as one of bis “ heirs so far as a support, but not as a legal heir to a part of bis estate.” Evidently intending to use tbe term “ heir,” where it first occurs, in the sense of "child.” The provision, then, for her support, is just such as be made for bis children, and no more. Tbe latter, at a particular period, (when the oldest child becomes of age or marries,) are to receive and enjoy tbe body of bis estate, in bis language, “ as legal heirs;” but tbe former is forbidden to take any portion of bis estate in such right.

These views sufficiently define tbe rights of tbe defendant in error, under tbe will of tbe testator, and as tbe result arrived at by us renders it necessary that tbe case should go to tbe Master in tbe court below, and as tbe reference to that officer was tbe only decretal order made by tbe Chancellor, it only remains to be said, that tbe decree of tbe Chancellor is affirmed, and tbe cause remanded, to be proceeded on in tbe court below, according to tbe view expressed in this opinion.

Let tbe decree be affirmed, at the costs of tbe plaintiff in error.