Isbell v. Maclin , 24 Ala. 315 ( 1854 )

GIBBONS, J.

It is contended by tho plaintiff in error that the limitation over to • — — Hands is too remote, and therefore void ; and this limitation being void, that the first taker, Adeline T. Heath, (afterwards Maclin,) took an absolute estate under the will.

The words of the limitation are: ts but in case my said half-sister should die without any lawful issue, then, and in that case, it Í3 my will, that all my -property should go from said half sister to —— Harris,” &c. The words i£ without lawful issue,” uncontrolled or unexplained by any other words or expressions in the will, limiting the failure of issue to any specific time, would undoubtedly be a limitation too remote, and void as an executory devise. This was the doctrine held in this court, in the case of McGraw v. Davenport, 6 Porter 317. In that case, certain slaves were devised to two of the daughters of the testator, named Louisa and Cynthia, and then followed this clause : £c Or should either of them die without issue, the other is to get the whole of the seven negroes and their increase” Held, that each of the daughters took an absolute estate. Also, in Darden v. Burns, 8 Ala. 362, the testator, after devising certain property to his daughters, adds tho following clause: “ My meaning is, the heirs of my daughters above named are to inherit the above bequests; and if no lawful heirs of their bodies, then to revert to the family estate Held, that the daughters took an absolute estate. Again; in tho case of Machen v. Machen, 15 Ala. 373, the words of the bequest were: “I leave to Jane Machen two negroes, Tamar and Price, during her natural life, then to her bodily heirs. If there should he no heirs, for said negroes and increase to go hack to the heirs Held, that JaneMaehen here took the entire estate. In Allen v. White, 16 Ala. 185, a bequest to one son, in trust for another son, £i his family and lawful children, which he now has or may hereafter have, and the survivor of them, was held a limitation too remote, and the first taker took an absolute estate. Also, in Standifer v. Ewing, 18 Ala. 400, the words of the bequest were : ££ I lend to my daughter Lydia Standifer, during her natural life, five negroes,” &e. t£ These five negroes, with all their increase, I will to the lawful begotten heirs of Lydia Standifer, to he equally divided among them at her death : Held, thac these words created an absolute estate in the first taker. In this last case, however, it is proper to remark, that the decision is not placed upon the ground that the limitation was too remote, but that the word “ heirs” in the bequest was to bo taken as a word of limitation, and not of purchase ; that the words of the bequest presented a case, where the persons designated could take both as heirs and purchasers; and applying to them the rule well established in such eases, they must take as heirs, and not as purchasers. — 4 Kent’s Com. 217, and eases cited. Those cases, we think, sufficiently show, that the rule in Shelley’s case, in all cases where it is applicable, is now established in this. State as a law of property ; too well established, indeed, to be questioned or overruled by sub ■ sequent judicial decision. In analogy to this rule, it is held, that where words are employed by a testator, which, if applied to realty, would create an estate tail, they create an absolute estate when applied to personal property. —4 Kent’s Com. 227.

But, whilst we acknowledge the binding force of the rule in Shelley’s ease, and entirely concur in the views expressed by this court in the cases above cited, it is equally true, as a prin • ciple, that the intention of the testator must be regarded, and carried out, if consistent with the law; and the whole will must be examined, to see if it is an indefinite failure of issue which is meant, and which the law forbids, or whether it is a failure of issue at a particular point of time, which the law sanctions..—4 Kent’s Com, 228. Courts often seize upon slight circumstances to take the case out of the rule, and sometimes, in their avidity to avoid what appears to he a severe restraint upon the alienation of property, according to the supposed wishes of the testator, do violence to sound rules of interpretation. Our view is. that these rules should be honestly applied to each case. as it arises, and if, by a fair construction, it can be gathered that the testator meant to tie up the limitation to a particular point, not prohibited by law, that intention should be upheld by the courts; but if it is not so limited, it should be declared void. In Woodley v. Findlay, 9 Ala. 716, the words of the bequest were: ££ I lend unto my grand-daughter, Mary Foster, one negro girl, called Little Dinah, during her natural life ; and at her death, I give and bequeath the said negro girl and her increase to the lawful issue of her body that may then be living, to them and each of them, share and share alike, their heirs and assigns forever; but, should the said Mary die without lawful issue, then to go to her sisters, share and share alike.” Here the limitation to the sisters is expressed in language not unlike that employed in the case at bar. This limitation was held good, because, says the court,<£ it is evident, the testatrix contemplated the remainder to vest in them (the sisters) during their lives.” In Dunn v. Davis, Ala. 135, the words of the bequest were: ££ I give to my daughter Minna, during her natural life, and at her death to her heirs or children, my negro man Abram Held, that the daughter Minna took only a life estate, and that the words ££ heirs or children” were words of purchase, and not words of inheritance, (Goldthwaite, J., dissenting). Also, in Shepherd v. Nabors, 6 Ala. 636, a deed was made of a certain negro to the heirs cf a certain daughter of the grantor, born of her body, the grantor reserving a life estate in himself: Held to' be good as an executory Revise, and that the £ heirs qf the daughter, born of her and living at the death of the grantor, took under the deed. In Williams v. Graves, 17 Ala. 62, the words of the limitation were : ££ It is herefcy declared to be my intention, that the negroes willed and devised to my said daughters is for the support and maintenance qf .the heirs of their bodies begotten or to be begotten ; if either of my said daughter’s should die without an heir oí‘her body begotten, the property of this one to pass off and become the property of the surviving daughter and my two sons and their heirs ; each one to have an equal share of the property willed to the daughter so dying without heirs :” Held, that the term ££ surviving” limits the meaning of the words ££ die without an heir of her body begotten,” to issue living at the death of the first taker. So, in Flinn v, Davis, 18 Ala, 132, per C. J. Dargan, the court, however, expressing no opinion, where a testator bequeaths personal property to his daughter and the heirs of her body, and if she dies without leaving lawful issue from her body then over: Held, that the word “ leaving” limited the meaning of the words u issue from her body,” to issue living at her death, and the limitation was good as an executory devise.

We have cited the latter class of cases, to show that, in reference to wills, it is a rule of construction in this court, to examine the instrument, and if it can be fairly gathered from the expressions used by the testator, that he intended a definite limitation within what the law allows, the court will give it that interpretation, although the words employed by the testator, taken in their technical sense, and disconnected from other expressions, would import an indefinite limitation, and one for» bidden by law.

Let us now test tbis will by this rule. The words are : “ but in case my said half-sister should die without any lawful issue, then, and in that case, it is my will, that all my property should go from said half-sister, to-Harris, son of Joseph Harris,” &c., “ to whom I give and bequeath all my property, in case of the death of my said half-sister, Adeline T. Heath, without lawful issue, as above mentioned.” When is this limitation to take effect, and become an absolute property in -- Harris 1 The words of the testator answer the question : “ then, and in that case, that is, on the death of the first taker without lawful issue. This construction receives further confirmation from the subf&quent words of the will: “ In default of lawful issue at the death of the first taker, the property was all to go from the said Adeline T. to the said —— Harris thereby excluding the idea of any intervening party taking the property after the death of Adeline T. before it passed to -Harris. We think attention to this phraseology of the will brings tbe mind to the irresistible conclusion, that the testator meant, a failure of Issue at the death of Adeline T. Heath.

I n arriving at this conclusion, we are not aware of doing violence to any sound rule of interpretation, but give to each phrase and expression of the will its full force and effect, as part and parcel of the same instrument. Our conclusion is, that the limitation to Harris is not too remote, but good : and that he took, on the death of the testator, a vested interest in the property, subject, however, to he defeated, on the performance of the conditions annexed to the bequest to the first taker.

We have not. thought proper to review, in this opinion, the English eases cited on the argument, nor those of our sister States. They are very numerous, often conflicting; and in some is to be found, we think, a departure from well established principles. This review has been made by this court in many of the cases above cited, and we are satisfied with their conclusions, as there expressed, so far as those decisions affect the present case.

The next question presented is, what estate did Adeline T. Heath (afterwards Maelin) take under this will 1 It is contended on the part of the defendants in error, that she took only a life estate, and that on her death her children, the plaintiffs in the court below, became invested with the title to the property, as purchasers from the testator. On the other hand, it is contended by the plaintiff in error, that she took a life estate only in the event that she died without lawful issue : but that when she married and had lawful issue, her estate became absolute.

In the construction of wills, it is admitted, that the intention of the testator, if it can be arrived at, and if it is legal, makes the law of the caso. What estate, then, did the testator intend that Adeline T., the first object of his bounty, should take under this will 1 It is clear, that, if she outlived him, and died without lawful issue, she would take but a life estate: and at her death without such issue, it is expressly provided that the property should go from her to Harris. But how does it appear from the will that she was to take only a life estate in any event 1 The first bequest was to her, provided she outlived himnot for life only, but to her without any qualification whatever, except that she outlived him. But it is not yet determined what estate she shall take- That remains yet to be fixed by the testator ; and then follows this clause. u upon the following conditions : should she marry, and have lawful Issue, the said property is to go to her and her heirs.’J This is the largest estate that any one can possibly have in property, an absolute fee simple title. It would seem that the testator had in his mind two prominent ideas in the disposition of his property, and but two: one was, to give his half-sister an absolute estate, on the happening of certain contingencies; and the other was, in case those contingencies did not happen, then to limit her to a life estate, with remainder over to —— Harris. The first object is now accomplished, by his will, and then follows the clause affixing the contingency: u hut in case my said half-sister should die without any lawful issue f &c., by which the property is limited over, and she confined to a fife estate.

We cannot presume chat the testator intended to provide for the issue or children of his half-sister as purchasers, for they were not then in being. Resides, that would be to cripple and diminish fne estate, which the first object of his bounty was to take. Instead of taking from him an absolute property, that would be limiting her to a life estate, and in favor of persons not yet in existence. We think the plain intent of the will is otherwise. The word H heirs” is no where else used in this will, and seems to be employed by the testator here, for the express purpose of measuring the estate that the first object of his bounty was to take. The word seems to he employed, not as a word of purchase, but as one of inheritance ; and we think that it was the intention of the testator to employ it in this sense. It does not seem to be used as synonymous with lawful issue, but in a more enlarged sense. So far from limiting her to a life estate in any or every event, we think it clear, that it was hut in one event that he so limited her, and that was, that she died without lawful issue. We arrive at this conclusion very naturally, first, because this is the legal import of the words upon their face, when considered all together; and, secondly, from the circumstances under which the will seems to have been made. It is apparent from the will, that the first object of the testator’s bounty was his half-sister, Adeline T., and rather than have his property go to collateral heirs, he preferred limiting it ovei* to — Harris, But if this first object of his bounty produced a line of lineal descendants, he was satisfied, and there was no longer any occasion for the limitation over.

Our conclusion is, from a careful examination of this will, that Adeline T. Heath took under it an estate for life, in any event, if she survived the testator; and if she married, and had lawful issue, then her estate beearne absolute; but, if she had died without lawful issue, then she would have had but a life estate, and the remainder-man would have taken.

It, follows, as a necessary consequence, that the- husband of Adeline T. Heath, by his marriage, acquired her rights, and, on issue being born, he became invested with the absolute title to the property, and could alienate it by deed. As the defendant traces his title by conveyances directly from William J. Maelin, tbe husband, his is therefore the better title, and the court below erred in its instruction to the jury. As this view of the case necessarily disposes of it finally, we have not thought it necessary to consider the other question presented by the bill of exceptions.

The judgment of the court below is reversed, and the cause remanded.

Chilton, C. J., not sitting.

Note by Reporter. — A rehearing having been granted after the delivery of the foregoing opinion,-the following opinion was afterwards pronounced: