Landman v. Snodgrass , 26 Ala. 593 ( 1855 )

GOLDTHWAITE, J.

—It may be remarked, that in bequests of personal property, where words are used by the testator which, without explanation,.import an indefinite failure of issue, courts have frequently shown a stronger inclination to bend the rule of construction to the presumed intention of the testator, thap ip ¿[eyjses of real estate, apd have allowed circumstances to control the words in the first case, which they have conceded to be insufficient in the last.—Forth v. Chapman, 1 P. Wms. 663; Doe v. Lyde, 1 Term R. 593; Doe v. Ewart, 7 Ad. & El. 636; Moffat v. Strong, 10 Johns. R. 12; Newton v. Griffith, 1 Har. & Gill 111; Royall v. Eppes, Munf. 479; Brummett v. Barber, 2 Hill’s S. C. 544-45; Williams v. Turner, 10 Yerg. 287; Mazyck v. Vanderhost, 1 Bail. Eq. 48. But there, is great question as to the soundness of this distinction.—Arnold v. Congreve, 1 Taml. R. 347; Zolicoffer v. Zolicoffer, 3 Bat. 438. Be this as it may, however, all the authorities at this day agree, that words like those used in the present will, (such as “dying without heirs” or “ without issue,” or “ on failure of issue”) without explanation, mean an indefinite failure of issue, and must be so construed, unless from the language, or circumstances of the other parts of the will, it is ascertained they were not used by the testator in that sense; in which case, the rule of construction yields, and the intention, prevails.—4 Kent’s Com. (7th ed.) 273; Williams v. Graves, 17 Ala. 62. Unless, therefore, on an examination of the will before -us, we find something in it which indicates that the testator did not' intend to use the words importing an indefinite failure of issue in that sense, there is an end of the. case. It would be unnecessary to go farther, and inquire what indications of a different intention were necessary to overcome the language employed. We must, of course, be governed by the rule which has repeatedly received the sanction of this court, (Isbell v. Maclin, 24 Ala. 315, and cases there cited,) and construe the words in their legal sense.

It is supposed by the counsel for the appellants,, that some evidence that the words referred to were intended to mean a definite failure of issue, is to be found in the character of the bequests made by the testator to his other two daughters. The argument is, that it is apparent that it was not the intention of testator to give the slave to Mary Ann absolutely, as he had given the slaves bequeathed to his other daughters ; and as the words employed by him in the, bequest to the former, if construed to mean an indefinite failure of issue, would necessarily produce this result, that construction should not be given to them.. We cannot yield our assent to this reasoning. It may be conceded, that the testator did not intend to confer the absolute interest in the slave on Mary Ann, and if she takes that degree of interest in the bequest, it is not because it was so intended by the testator, but because the limitation over which was intended by him is void as against the policy of the law ; and this limitation being void, leaves the entire interest in the first taker.

Neither can we regard the sex of the slave bequeathed as affording any indication of the intention of the testator to uso the words in a different sense from that which the law ordinarily attaches to them. It is true, that this circumstance would be conclusive to show that the testator did not mean to create a perpetuity ; but we do not regard such an intention as necessary to avoid the limitation. The law denounces settlements or bequests of this character, made with regard to this species of property, because the result of them, if allowed, would be to lock up and restrain it from alienation for an indefinite period of time, which might extend through generations.

It is also urged, that the limitation to .the “ living children” of the testator, or “ the living heirs of their body”, on the demise of Mary Ann without heirs of her body, tends to show that the testator must have meant dying without such heirs living at her death ; and the case of Williams v. Graves, 17 Ala. 62, is relied on to sustain that position. In that case, the bequest was to the testator’s two daughters “ and the heirs of their bodies begotten”'; and if either of the daughters was to die “ without such an heir”, the slaves bequeathed to her were to pass to the “ survivor” and the testator’s two sons. It was held, that the word “ survivor” limited the meaning of the words “ without such an heir”, to issue living at the death of the first taker. Here the use of the word referred to showed that the slaves given to one daughter were to pass to the other, as soon as she became the survivor, if at all; and in that view, the limitation could not have taken effect, if an indefinite failure of issue had been intended. But had the words been such as indicated an intention which might have taken effect after that point of time, liad the issue failed, a very different case would have been presented. In other words, ha4 the limjtatjpn been to the survivor, if living, but to her heirs, or the heirs of her body, if dead, it would then have denoted the intention of the testator, that the limitation over was not dependent upon the survivorship alone, but depended rather on the failure of issue, and would therefore be void. Here the testator provides, that if the first taker dies without heirs of the body, the property given to her shall return to his estate, and be equally divided among his “living children,” or the “living heirs of their body” — that is, if on the failure of issue of the daughter, the testator had children living, the property was to pass to them; and if they were dead, their issue were to take in their place.

Taking the whole will together, and as to the slave in question, wo think the meaning of the testator cannot be mistaken. His object was, to provide for an unmarried daughter. He did so by a bequest of property which he intended to continue with her and her posterity, until the one ceased to exist, and the other became extinct; and if these events happened before the death of the slave bequeathed, he was to return to the estate, and become the property of the other children of the testator, if living, and to their posterity, if dead. This disposition of property is entirely in accordance with our natural affections and instincts, but it is one which the law, for reasons of its own, does not tolerate, and which courts professing to be governed by precedents long established and firmly adhered to, cannot sustain. •

Judgment affirmed.

Rice, J., having been of counsel, did not sit in this case.