Thrasher v. Ingram , 32 Ala. 645 ( 1858 )

STONE, J.

Answers to the interrogatories propounded to the plaintiffs would have been entirely immaterial, and for this reason, if no other, there was no error in refusing to compel the female plaintiff to answer them. The argument which shows their immateriality is as follows :

According to the common law, which we presume to be of force in North Carolina, marriage operates a present gift to the husband of the wife’s personal property in possession ; and also clothes him with the right, during the continuance of the coverture, to reduce her choses in action to possession, and thus become the absolute owner of them. In this right to reduce to possession her choses in action, there is necessarily implied a right to sue for them; and of this right the wife cannot depfive him, by any proceeding recognized and enforced in courts of common-law jurisdiction. Even if husband and wife be living apart, that circumstance cannot deprive him of the common-law right to bring her property under the control of his marital rights.

True, the husband may, in a proper case, be compelled, by suit in chancery, to make a suitable settlement on the wife out of her property ; but this mere right in her, unless proceedings be set on foot to enforce it, does not affect his legal right to recover the property. — Savage v. Benham, 17 Ala. 119; Chambers v. Perry, 17 Ala. 726; Montgomery v. Givhan, 24 Ala. 568; Blevins v. Buck, 26 Ala. 292; Manning v. Manning, 24 Ala. 386; 2 Kent’s Com. (8th ed.) 107, 114; 1 Bright on H. & W. 24, 86; Hooper v. McWhorter, 18 Ala. 279.

It results from the principles above stated, that even if the plaintiffs were living separate, or if Mrs. Ingram was unwilling that this suit should be prosecuted, she had no right, save by bill in chancery under the rule above alluded to, to arrest the prosecution of this suit.

[2.] The correctness of the ruling of the court, in refusing to suppress the several depositions, depends on the proper construction of the two sections of the Code, 2322 and 2323. The first named of those sections is evidently a general direction to the commissioner as to the rules to be observed by him in reducing the answers to writing. If this section stood alone, we would unhesitatingly pronounce it directory. The difficulty arises out of the next section.

It is contended that the word “manner,” employed in section 2323, renders it necessary that the certificate of the commissioner shall affirmatively show that, in taking the deposition, he complied with each and every direction contained in section 2322. It is further contended, that if the certificate be wanting in any of those particulars, it is defective, and the deposition will be suppressed on motion.

We do not assent to this construction. Evidently, those requisites, which would not appear but for the caption and certificate — namely, the commissioner by whom the testimony was taken, the proof made, or knoweldge in the commissioner, of the personal identity of the witness, the time and place of executing the commission, and the fact that the witness was duly sworn — these should be expressly shown, in either the caption or certificate. The answers to the interrogatories stand on a different principle. Per se, they furnish evidence of the manner in which they are reduced to writing. If they, on their face, appear to be full, and no marks of suspicion are observable about them, we think they come fully up to the requirements of this section. The answers, certified by the commissioner, are, to that extent, his certificate of the manner of taking the deposition. In the absence of any showing to the contrary, the law presumes the commissioner does his duty.

¥e adopt this construction the more readily, because we can perceive no possible good that can come of the more rigid construction. The commissioner who would be either ignorant or corrupt enough to permit answers to be improperly written down, would be equally liable to authenticate them with a formal certificate. The motion to suppress the depositions, was rightly overruled.

[3.] We can perceive no solid foundation for the objection to the introduction of the record from the court of pleas and quarter-sessions of Gabarras county, North Carolina. The certificate of the judge or presiding magistrate is substantially a compliance with the act of congress, and the primary court did right in admitting it. White v. Strother, 11 Ala. 720; McRae v. Stokes, 3 Ala. 401; Crawford v. Simonton, 7 Porter, 110; Dozier v. Joyce, 8 Porter, 303.

[4-5.] A question is made on the effect which the probate imparts to the will as an instrument of evidence. The argument is, that inasmuch as a will may be effectual for an enlarged or qualified purpose — may be even upheld as a valid appointment of an executor, and inoperative as to both real and personal estate, the court of construction can give effect to it only to this most limited extent; and that he who asserts its larger operation, must, on the trial, prove its execution as other written evidence is proved. It is, in this connection, contended, that the statute of North Carolina gives countenance to this view, in this, that while it defines the essentials of a valid will, it only declares that wills wanting in these essentials shall be “ insufficient, in law or equity, to convey or give any estate, real or personal.”

The authorities we have cited, supra, show that the probate of a will is a judicial proceeding. It is the judicial ascertainment of the final will of the testator, in reference to the ultimate disposition of such portion of his estate as the will is effectual to pass. Probate, being a proceeding in rem, “ operates upon the thing itself. It defines, and in a great degree, creates, its status.” — Deslonde & James v. Darrington, 29 Ala. 92. This status becomes a quality or property of the effects disposed of by the will, and binds all persons thereto, who claim in virtue of the will. As to them, and those holding under them, it is res judi-cata.

The record of the probate in this case expressly shows that the will of Mr. Alexander was established as a valid disposition of his personal property. That record, if we accord to it verity, is conclusive of the point raised on the probate of this will.

It is urged by appellant, that we should not be governed by this, because, under the statute of North Carolina which was read in evidence, the same form and solemnity are "necessary to constitute a valid will of both real and personal pi’operty; and from this it is argued, that in that State there can be no such a thing as a valid will of personal estate, which is not alike valid as to the real estate attempted to be devised by it.

The record does not inform us when the statute relied on was enacted. It may have been long since this will was probated. If necessary to the result in this case, we might feel it our duty, in support of the correctness of the judgment of the North Carolina court, to presume that the statute was enacted since this will was established. Gunn v. Howell, 27 Ala. 663. We feel relieved, however, from the decision of this question.

In Florey v. Florey, 24 Ala. 241, it was decided, that “fraud, or undue influence, in procuring one legacy, does not invalidate the other legacies, which are the result of the.free will of the testator.” In this case, there was an issue devisavit vel non. The precise form of the issue is not given. For aught that we can know, the devises of real estate by Mr. Alexander may have been declared inoperative, because they were obtained by fraud or undue influence. We feel bound to presume there was a good and valid reason for the particular verdict and judgment rendered in this case.

In thus declaring the effect of the record from North Carolina, we do not wish to be understood as deciding .that, in the absence of such express statement, a different construction would be placed on it. The rule in England is, that “the granting of probate is conclusive as to the testamentary character of the instrument in reference to personalty.” — Douglas v. Cooper, 3 My. & K. 378; 1 Jar. on Wills, 22, notes D, and 1-2; 2 Greenl. Ev. § 672. So, in most of the States of this Union, courts of probate, or orphans’ courts, are established, with power to take probate of wills; “ and where such power is conferred in general terms, it is understood to give to those courts complete jurisdiction over the probate of wills, as well of real as of personal estate, and, therefore, to render their decrees conclusive upon all persons, and not re-examinable [collaterally] in any coart.” — 2 Greenl. Ev. § 672, note 1 on p. 652; 1 Greenl. Ev. § 550; Darrington v. Borland, 3 Por. 9; Osgood v. Breed, 12 Mass. 525, 531; Tarver v. Tarver, 9 Peters, 180; Langdon v. Goddard, 3 Sto. 13, 23; Hunt v. Acre, 28 Ala. 580; Poplin v. Hawke, 8 N. H. 124; see, also, case of Wells’ will, 5 Litt. 273; Brown v. Gibson, 1 Nott. & McC. 326; Crossland v. Murdock, 4 McC. 217; Bogardus v. Clark, 1 Edw. Ch. 266, 270; 2 Atk. 378; Clark v. Dew, 1 Russ. & M. 103; Hume v. Burton, 1 Ridg. P. C. 277; 4 Paige, 623; Maxwell v. Montague, 3 Atk. 546; Harrison v. Rowan, 3 Wash. C. C. 580-2-3; Dew v. Ayres, 1 Greenl. 153; Darby v. Mayer, 10 Wheat. 465-9.

We hold, then, that the probate of a will which assumes to pass personal property, which probate contains nothing restrictive of its operation, so far establishes the will, as to uphold the bequests contained therein.

[6.] The sale made by Mrs. Alexander conveyed away her title, whatever it was, and did not have the effect of destroying the estate reserved to her under the will, or of cutting off the remainder. The rights of the remainder-man continued the same as if she had made no conveyance. — Jones v. Hoskins, 18 Ala. 489, and other authorities on the brief of counsel.

The only other questions presented by the record, are those which arise on the charge given and the charge refused. On these several points are made:

1. It is contended, that the right of the plaintiffs in this case is barred by the statute of limitations, because, under the will of Mr. Alexander, the widow, Mrs. Alexander, and her two children Martha and Kosciusko, took a collective estate in presentí; and inasmuch as the property had been adversely held for more than six years when this suit was brought, even since Mrs. Ingram attained to the age of twenty-one, the argument is that a recovery cannot now be had.

2. It is contended, also, that this suit is barred, because, under the will, the title of Mrs. Alexander terminated when her children came of age or married.

3. It is contended, that under the third and sixth items of the will, the children do not take as remaindermen, but that on the termination of Mrs. Alexander’s estate, the property reverted to the estate, and that the personal representative of Mr. Alexander alone has the right of action.

4. It is contended, that a new assent by the executor to the legacy to Mrs. Ingram was a necessary pre-requisite to the vesting of the legal title in her.

5- It is contended, that under the 8th item of the will, Mrs. Ingram takes the share of her deceased brother Kosciusko, only as his next of kin ; that as to his interest, the legal title is in his personal representative; and as Mrs. Ingram has not the entire legal title, she cannot maintain the action of detinue.

The solution of each and all of these questions depends on the construction of Mr. Alexander’s will.

[7.] The general rules for construing wills are, that effect must, if possible, be given to the intention of the testator, to be gathered from the whole instrument; that the general intent shall prevail over the particular; that the varying, and apparently conflicting clauses shall, if possible, be reconciled, so as to make each clause operative ; and, in case of irreconcilable repugnancy, that the latter clause shall prevail over the former. — Denson v. Mitchell, 26 Ala. 360; Walker v. Walker, 17 Ala. 396; Pace v. Bonner, 27 Ala. 307; Miller v. Flournoy, 26 Ala. 724; Gibson v. Land, 27 Ala. 117.

The will of Mr. Alexander is very inartificially drawn. It employs language frequently without reference to accuracy, whether it be regarded in common or technical sense; and this remark applies as well to words of ordinary use, as to those of legal significance.

After the most mature deliberation, we have come to the following conclusions, as the most satisfactory construction we can place on this will, which evidently “ has no brother: ”

[8.] The 2d item of the will gives to Mrs. Alexander an estate in certain lands, slaves and other personal property, to continue during her life or widowhood, with the exception that, when the testator’s children by the said wife Martha should come of age or marry, the devise to her was to be qualified by the provisions of the 3d item in favor of his son Kosciusko; and the bequest to her was to be abated by the provision in the 4th item in favor of his daughter Martha, “when she shall have come of age and married.” ' It will be observed that the 3d item, speaking of the identical land which had been previously, in the 2d item, given to Mrs. Alexander, “ during her natural life or widowhood, or until [testator’s] children by her shall come of age or marry,” devised the same to his son Kosciusko, “ his heirs and assigns forever, * * still allowing to his mother, during her remaining [testator’s] widow, all that interest necessary for her maintenance and comfort.” Under this item, the title to the realty certainly passed out of Mrs. Alexander when her son attained to lawful age ; but there was charged upon it a trust, to the extent necessary for her maintenance and comfort.

Under the 4th item, Martha, the daughter, “when she shall have come of age and married,” was to be furnished, out of the property given to her mother in the 2d item, “ a feather bed and furniture, a horse and saddle, a cow, and one negro girl, viz., Caroline or Adeline.”

Both these provisions were carved out of the devise and bequest to the widow in the 2d item ; both might take effect while she was yet in life, and testator’s widow; and they furnish a field of operation for the words in the 2d item, “or until my children by her shall come of age or marry.” We therefore construe these items of the will substantially as follows: The devises and bequests to Mrs. Alexander, as found in the 2d item, wei’e all to continue during her life or widowhood, except those portions disposed of over in the 3d and 4th items, which the wife was to enjoy only until testator’s children by her shall come of age or marry.

If any doubt remain of the correctness of the above construction, we think that doubt will be dissipated by considering the subsequent items of the will. Both the 3d and 4th items absolutely provide for an interest in her after the children shall have come of age or married. .The 6th item is still more explicit. It fixes the termination of her right “to the property hitherto devised,” at her death or marriage.

We attach no importance to the 5th item, as bearing on the question of construction. That seems to stand alone, and it does not appear that the land therein devised is mentioned any where else in the will. ,

We thiuk there is nothing in the argument that this will creates a collective estate in Mrs. Alexander and her children. Evidently there was some trust for their benefit; but it was a mere equity in the proceeds. The legal title was in her. The right of the children in this property, before and after the termination of the mother’s estate, was entirely different in nature and extent; their remedies in different courts. — See Hammond v. Neame, 1 Swanston, 35.

The property in controversy in this case consists of two of the children of Abigail, who is mentioned in the 2d item of the will. Whether this property ever reverted to the estate of Mr. Alexander, the testator, and thus revested the title in his personal representative, must depend on the 2d, 6th and 8th items of the will. The language of the 2d item is, “ should my wife marry again, my will is, that all the property hitherto to her devised, revert back into my estate,” &c. The language of the 8th item is, “ should neither (Martha or Kosciusko) survive to come of age, that the whole property revert into my estate,” &e. These are the only clauses of this will, bearing on this property, that make any mention of a reversion to the estate oí the testator. Mrs. Alexander never married again, and is now dead. Martha, her daughter, survived to come of age, and married. Hence it is impossible that either of the contingencies, on which the property was to revert to the estate by any express provision of the will, ever can happen. The testator having declared there should be a reversion on the happening of either one of the two events, and having given other directions in reference to other events, the rule applies, indusio unius est exdusio alterius. We hold, then, that under the first clause of the 6th item, and the first clause of the 8th item, no reversion of the title of the property to the estate of the testator was contemplated. If the division of the property to take place on the termination of the right of the testator’s wife, as provided by the 6th item of the will, was to be made by the executor, this is a naked power without any title in him. — See Dean v. Dean, 7 Monroe, 304; Oneal v. Beall, 10 B. Mon. 272.

An argument has been suggested, predicated on the last clause of the 2d item of the will. That clause reads as follows: “ Should my wife marry again, my will is, that all the property hitherto to her devised revert back into my estate, and be reserved as a fund for the maintenance, education and final advancement of my children by my said wife Martha.” The argument is, that this clause declares what is to be done with the property, if the title to the wife terminate during the minority of the children —namely, that it shall revert back into the estate, and be reserved, &c., until the children come of age or marry. It is contended that, under this clause, if the contingency had happened, the right to the slaves would have revested in the executor. The argument takes a further step, and contends that the first paragraph of the 6th item must be construed in connection with the last clause of the 2d item, and that the division- spoken of in the said 6th item was to take place when the children should come of age or marry, and not sooner. The language of the 6th item is, “ I devise that, upon the extermination [termination] of the right of my wife to the property hitherto devised, either by marriage or by death, that then all the remainder of the finally undevised perishable property be divided between my above named son and daughter, in that proportion that my son possess two-thirds' of the whole, and my daughter one third.”

As each of these clauses gives directions as to Avhat is to be done with a large portion of the same property, in the event of the termination of the wife’s estate by marriage; and the directions ai’e apparently repugnant, of course ive cannot give to each clause its literal meaning. The 2d item, by directing that the property be reserved as a fund for certain purposes, continuous in their nature, is somewhat repugnant to the direction found in the 6th item, that upon the happening of the same contingency, the same property is to be then divided, &c..

"We have said above that the contingency upon which the first of these two clauses is to become operative, never can happen. Hence we might dismiss its further consideration. Inasmuch, however, as the clause may enter into the construction of the whole will, we proceed briefly to state our conclusions, and the reasons on which they rest.

"We hold, then, that items three and six are the testator’s exposition of what he means, when he says in the 2d item, the property shall revert back into my estate, and be reserved as a fund — namely, that the laud shall go to his son, and the personal property shall be then divided, in the portions there indicated. The reasons for this opinion are—

1. That item six, being posterior to item two, controls it, if the two are repugnant.

2. If we hold there is a reversion and reservation proper under each of the clauses under discussion, the two clauses become palpably inconsistent and repugnant, and cannot both be carried into effect, in this: Under the clause in the 2d item, both the real and personal estate mentioned in that clause revert back into the estate, should the widow put an end to her estate by marriage ; while under the 6th item, on the happening of the same event, only the remainder of the finally undevised perishable property would revert back. The 3d item gives the land to the son; and hence it follows, that both these clauses, under the construction contended for, could not in the nature of things be carried out. Under the construction which we adopt, all can be made operative.

3. The construction contended for will give the lands exclusively to the son, on the termination of the widow’s life estate by death or marriage, and reserve the slaves and other personal property, including farming utensils, as a fund for the maintenance, education and final advancement of the two children Martha and Kosciusko. These results certainly could not have been'intended.

4. If, under the construction contended for, we hold that the devise to Kosciusko contained in the 3d item was not to take effect until he'should come of age or marry, even though the right of his mother should determine before that time by her death or marriage, then we place this property in the following absurd category: If her right determined by her marriage, the whole property, both' real and personal, under the 2d item, would revert back into the estate, to be reserved as a fund. On the other hand, if an end were put to her estate by her death, then, under the 6th item, only the “finally undevised perishable property” would revert back, leaving an intestacy as to this land, between the determination by death of the wife’s estate, and the time when the children by her should “come of age or marry.” Many of the clauses and expressed objects of the will would be defeated by this construction.

In the conclusions we have attained on these clauses, we think we give effect to the general intent of the will; and their perfect consonance with that thoughtful precaution which usually governs in such matters, commends them to our cheerful approval.

The 6th item of the will, if it stood alone and unexplained by other clauses, might be held to be a residuary clause. This construction is precluded by the 13th item, which is, in terms, a general residuary clause, later in the will, aud more explicit in its language. Construing these two items together, they leave little or nothing for the 6th to operate on, unless it be held to embrace the undis-posed of remainder in the personal property previously given to Mrs. Alexander during life or widowhood. Giving them that construction, we carry into effect the intention of the testator, both express and implied, to make provision for each of his children. Any other construction will render items six and eight nugatory; will leave the Remainder in this property, after the termination of Mrs. Alexander’s estate, undisposed of by any express provision in the will; and will leave these children with a very inconsiderable patrimony, compared with the provision for his other children. This construction is forbidden by the declared intention of the testator, that his wife “ and her family may be in comfortable circumstances when [testator] is dead and gone and by the concluding paragraph of this part of his will, where he says, “ Having disposed of my wife and younger children, as their interest and endowment are necessarily involved with hers, I proceed to the case of my older children.”

¥e hold, then, that the 6th and 8th items in the will relate to the undisposed of remainder in the personal property mentioned in the 2d item.

[9-10.] It was contended in argument that, as to an undivided two-thirds of this property, the claim of Mrs. Ingram was, at the time when the assent to the legacy of Mrs. Alexander was given, but a contingent remainder; and that such assent was not an assent to the contingent remainder. The case of Nixon v. Robins, 24 Ala. 663, is relied on in support of this proposition.

In the case last cited, a life estate in slaves, was created by will in Mrs. Nixon, with a remainder in her son Thos. Nixon, contingent on his living to be twenty-one years old. No disposition was made of the intermediate interest, in the event Mrs. Nixon should die before Thomas attained to lawful age. She died during his minority, and the question was, who had this intermediate title. This court held, that there was a chasm between the twro estates, undisposed of by the will, and that this intermediate interest must be administered as in case of intestacy. The necessary result was that, on the death of Mrs. Nixon, the title to the slaves revested in the executor of the will. The court intimated the opinion, that a new assent of the executor would be necessary to perfect the title of the remainderman, when he should attain the requisite age.

The case of Nixon v. Robbins is, in its facts, unlike the one we are considering. Here there can be no chasm, no intestacy. At the termination of the first estate, the estate of Martha and Kosciusko attaches in possession under the 6th item of the will; and if that estate fail under the provisions of the 8th item of the will, by the death of one or both of the children before they come of age, the will then directs how the property shall go. — See 1 Roper on Legacies, 403, et seq.

We characterize the estate of Martha, the younger, and Kosciusko, secured to them, under the 6th item of the will, as a vested legacy. — Gibson v. Land, 27 Ala. 117, and authorities cited; Savage v. Benham, 17 Ala. 119; Nixon v. Robbins, 24 Ala. 663; Travis v. Morrison, 28 Ala. 494, and authorities on the briefs of counsel in that case. This vested legacy, however, was not of the absolute residuum of the title. It was absolute, if both children should live to the age of twenty-one years. In the event either or both of them should die before attaining that age, theu this remainder was defeated by a condition subsequent. If one lived to the age of twenty-one, and the other died before, the survivor was to have and enjoy the absolute title in the remainder. This precise event happened, and Mrs. Ingram is the survivor. We, then, characterize the estate of Martha S. and Kosciusko, under the 6th item of the will, as a vested legacy, defeasi-ble on a condition subsequent.

We have shown that the entire title to this property has centered in Mrs. Ingram. We hold, that each successive stage in this title has accrued to her directly under the provisions of the will. Her legal title to the property did not accrue, until the death of her mother in 1863.

We cannot assent to the argument, that a new assent by the executor was necessary to vest in Mrs; Ingram the interest to which she succeeded under the 8th item of the will, as the survivor of her brother. We have found no authority which supports the argument, and we know or no principle which renders such an act necessary. The foundation on which this whole doctrine of assent rests, is, that both the executor and the creditors may have their interests guarded. We can imagine no reason for holding that, after an executor has once parted with his right to the property by assenting to a legacy, there could subsequently, on the termination of the particular estate, spring úp a reason for a second expression of willingness to part with the property. We do not say a testator might not, by the terms of his will, fender successive assents necessary. There is nothing in this will which calls for an assent to the title of Mrs. Ingram, which she acquired as survivor of her brother.

In Roper on Legacies, vol. 1, p. 570, it is said, “When a legacy is limited to several persons in the nature of remainders by executory devise, the executor’s assent to the first taker will be considered an assent to those who are to succeed.” — See, also, 1 Roper on Legacies, 568, et seq.; Sugclen on Property, 64 Law Library, 285, et seq.

We believe we have answered and refuted the five propositions of appellant, stated above.

[11.] It is further contended for appellant, that the assent to Mrs. Alexander’s legacy was an assent to the vested remainder; and that as Martha 8. hada vested legacy in an undivided third part of these slaves, the possession of her mother was her possession. Prom these premises, the further position is assumed, that when Martha S. intermarried with Mr. Ingram, his marital rights attached to this undivided third part; and as to that interest, the legal title was not in her, but in him, and he alone •can maintain a suit for it.

Such would doubtless have been the result, if Mrs. Alexander, at the time of the intermarriage of the plaintiffs, had been in possession of these slaves. — See Walker v. Fenner, 28 Ala. 367, and authorities cited. In this case, however, the slaves at the time of the marriage, and ever afterwards, were in the hands of others, who were holding in their own right, and adversely to the right of Mrs. Ingram. Under these circumstances, the slaves did not pass absolutely to the husband, but were dioses in action belonging to the wife. They could not become the property of Mr. Ingram, until, during the coverture, he reduced them to possession, actual or constructive. Broome v. King, 10 Ala. 819.

There is no error in the record, and the judgment of the circuit court is affirmed.