Powell v. Glenn , 21 Ala. 458 ( 1852 )

DARGAN, C. J.

— The material question in this case arises upon the construction of the will of Robert Graves, deceased. By the fourth clause, he gave to his daughter, Mary Ann, and to the heirs of her body begotten, two negro girls, a negro woman and child. The fifth clause is as follows: “I will and devise to my daughter, Sarah Glenn, and to the heirs of her body begotten, a negro woman named Betty, of the age of twenty-six, and a negro boy named Sam, of the age of fifteen.” The sixth clause is in the following language: “ It is hereby declared more fully tobe my intention, that the negroes willed and devised to my two daughters, as above, is for their support and maintenance, and to the support and maintenance of the heirs of their bodies begotten, or to be begotten; and to descend directly after their death to the heirs of their bodies begotten. If either of my daughters above named should die without an heir of their body begotten, then and in that case, the property so willed to them, or to the one that ■may so die without an heir, the property of the one so deceased shall pass off, and become the property of my surviving daughter and my two sons, or their heirs; each one to have a share alike in the property so willed to the one so dying without heirs.”

It was shown that the plaintiffs are the children of Sarah Glenn named in the fifth clause of the will; that she departed this life before the suit was brought, and that the slave in controversy is one of those bequethed to her by the said will of her father. The defendant proved that the slave came into the possession of Sarah Glenn, and into the possession of her husband, before her death, and that he purchased said slave at sheriff’s sale, as the property of the husband. Upon these facts the court charged the jury, that the plaintiffs were entitled to recover.

This will was before this court at a previous term, and the question then was in substance the same that it is now ; that is, whether the remainder over created by the will was valid as an executory devise. We held, that it was. Graves v. Williams, 17 Ala. 62.

But this decision is assailed as incorrect upon principle, and as opposed to the subsequent case of Standifer v. Ewing, 18 Ala. 400. It is said to be wrong upon principle in this: that by the will Sarah Glenn would have taken an estate tail, had the subject matter of the bequest been land instead of personal property, and consequently she took the absolute property in the slaves. All the authorities agree, that if personal property be given by words that would create an estate tail at common law, if the subject of the gift were land, then the remainder over is void, and the first taker will take the whole. This is the familiar rule, and is disputed by no one; and if the fourth and fifth clauses of the will of the testator stood alone, unexplained and unqualified by the sixth clause, that rule would apply. But we are not to interpret a will from one clause alone, but by every part of it that bears upon the matter, and from the whole we are to ascertain the testator’s intention; and if from the whole will the estate be not an estate tail, but an estate for life with a remainder over, we must support the remainder, if it can be done consistently with the rules of law.

Let us, then, examine the sixth clause of the will; for that qualifies and explains the previous gifts. In that clause the testator declares it to be his intention, that the slaves given to his daughters should be for their support and maintenance, and for the support and maintenance of the heirs of their bodies begotten or to be begotten. Did he use the term “ heirs of the body” in its technical legal sense, or did he intend to signify by the use of it, “ children?” That the latter was his intention, there can be no rational doubt; for it is too manifest to admit of argument, that the testator supposed that the children of his daughters would derive a benefit under the will, or from the use of the slaves, even before the death of their mother. We will not undertake to decide that the children did take a vested interest before the death of their mother, for it is not necessary to do so ; but, from the language employed, we feel assured that the testator thought that they would be benefitted by the slaves even during their mother’s life; and if so, then it would be impossible for him to have used the words in their technical sense, for no one can be the heir of another, or the heir of his body, until the death of the ancestor; and if the, testator used the words “heirs of the body” under the impression that such heirs of the body would or might be benefitted by the gift during the life of their mother, he then could have intended by the use of those words “ children,” and not “heirs of the body” in their legal acceptation only.

The words, “heirs of the body” ordinarily are words of limitation, and not words of purchase; but they are frequently used in wills to denote “ children,” or as synonymous with “ children, and when used in that sense by the testator, we must construe them as words of purchase, and not of limitation. Doyle v. Bouler, 7 Ala. 246; Fellows, Wadsworth. & Go. v. Tann, 9 Ala. 999. And when, from other expressions, in the will, we see that the estate of the first taker is restricted to a life estate, and the property devised by the terms of the will is to vest in the children of the first taker that may be then (at the death of the first taker) in life, we must then construe the words “heirs of the body” as words of purchase, and not of limitation. Darden’s Adm’r v. Burns’ Adm’r, 6 Ala. 362, and cases there cited. Any other rule of construction than this would violate the intention of the testator, or fail to carry that intention out when it would be lawful to do so. Indeed, all the authorities agree, that though the words “ heirs of the body,” or “ dying without issue” do ordinarily create an estate tail, yet they may be restricted and explained by other expressions; and if, from such other expressions, we see that the testator intended that the estate of the first taker should cease with his life, and the property given should then vest in his children, or, in default of children at the time of his death, then over to another, in such cases we cannot refuse to give effect, to the remainder without violating the well settled rules of law. See Darden’s Adm’r v. Burns’ Adm’r, 6 Ala., and Graves v. Williams, 17 Ala., supra.

Nor does the case of Standifer v. Ewing, 18 Ala. 400, impugn in the slightest degree this well settled rule of law. In that case, the gift was to Lydia Standifer during her natural life, and at her death'to be equally divided between her lawfully begotten heirs. There were no words restraining or explanatory of the words, “ lawfully begotten heirs,” and therefore the gift was the same as if it had been to Lydia for life, and at her death to her heirs; and such a gift as this, beyond doubt, gave to Lydia the absolute property. But the whole reasoning of the court in that case clearly shows, that if there had been explanatory words used in that will which showed that the testator intended the children of Lydia, and not her heirs in the technical and legal sense of that term, then the remainder over would have been good. But it is useless to pursue this subject further. We entertain no doubt but that the words “heirs of the body,” as used in this will, must be construed as words of purchase; that is, they signify “children,” and are not to receive their usual technical meaning. The sixth clause of the will clearly denotes that the testator used them in that sense, and we must attach that meaning to them, or violate his intention. Giving that interpretation to the words “heirs of the body,” the remainders over, beyond doubt, are valid, and the plaintiffs, upon the death of their mother, became entitled to the slaves.

But it is insisted that the plaintiffs could not recover, because, by the will of the testator, the legal title to the slaves was vested in the executors, who were authorized by the will to take possession of the slaves, and hold them for the benefit of the testator’s daughters. But it is sufficient to say, that, by the terms of the will, the title of the executors, as trustees, was to cease upon the death of the daughter; for the property was then to pass off, and descend to her children, or, in default of children, over to others ; and we cannot continue the title of a trustee beyond the time contemplated by the will when it should be determined. Comby v. McMichael, 19 Ala. 747.

Another ground relied on by the plaintiff in error, is, that one of the female plaintiffs married after the suit was commenced, and her husband has not been made a party. But it is enough to say, even if that objection could avail any thing in this case, that it could only be taken advantage of by plea in abatement. Chitty’s Pl. 83; Morgan v. Painter, 6 Term, 265. It may be well doubted, however, whether the objection could have availed, even if it had been presented by plea in abatement.

The last objection to the regularity of the judgment, is, that one of the plaintiffs died after the suit was brought, and his representative was not made a party. This objection could only have been raised in the court below to reduce the amount of recovery; but no charge was given or requested, touching the quantum of damages to which the plaintiffs were entitled, and, therefore, it cannot be raised here. It may, however, be remarked, that it is by no means certain, but if two or more join in an action of trover, and one should die before the trial, that the other plaintiffs are not entitled to recover the full value of the chattel converted.

We are satisfied that there is no error in the record, and the judgment must be affirmed.