Sharp's Adm'r v. Sharp , 35 Ala. 574 ( 1860 )

R. W. WALKER, J.

1. The court did not err, in refusing to allow the appellant credit for the amount paid by him on the decree in favor of Jefferson R. ITerrin, administrator de bonis non of Wm. Herrin. That decree, not having been filed within the required period as a claim against the estate, lost its character as a subsisting debt; and the appellant was not bound, and had no legal right, to apply the assets of the estate towards its payment. Murdock v. Rousseau, 32 Ala. 611; Sharp v. Herrin, 32 Ala. 502; Code, § 1847; Puryear v. Odom, Puryear, at the last term.

2. Where a testator gives property to his surviving children, or to his children or the survivor of them, or to the-survivors of any persons or class of persons; and a prior life, or other particular estate, is interposed, so that the gift is not to take effect in possession immediately on the testator’s death, but onty on the termination of such precedent estate, — the question as to the period to which the words of survivorship will be applied, is one in reference to which there is a most embarrassing conflict of authority.

The doctrine of the earlier English cases was, that in the absence of expressions strongly indicating a contrary intent, words of survivorship should, in this class oí cases, be applied to the death of the testator ; and the courts of New York, Pennsylvania, Virginia, .and Georgia, have adopted the same rule. — See, Stringer v. Phillips, 1 Eq. Cas. Abr.; Rose v. Hill, 3 Burr. 1881; Wilson v. Brown, 3 Brown’s P. R. 195; Roebuck v. Bean, 2 Vesey, Jr. 265; Perry v. Woods, 3 Vesey, 204; Garland v. Thomas, 1 Bos. & Pull. 82; Edwards v. Symons, 6 Taunt. 213; Moore v. Lyons, 25 Wend. 119 ; Mowatt v. Carow, 7 Paige, 340; Johnson v. Morton, 10 Barr, 245; Manderson v. Lakens, 23 Penn. 31; Hansford v. Elliott, 9 Leigh, 79; Martin v. Kirby, 11 Grattan, 67; Vickers v. Stone, 4 Geo. 461.

On the other hand, the weight of the more recent English authorities inclines in favor of the rule, that where possession of the subject of the gift is postponed until the termination of a prior life, or other particular estate, words of survivorship will be referred to the period of division or enjoyment, rather than to the death of the testator, unless a contrary intent be especially shown by other expressions in the context; and this has been adopted as a sound rule of construction, by the courts of Massachusetts, New Jersey, North Carolina, and South Carolina. Cripps v. Walcott, 4 Madd. 11; Home v. Pillans, 2 M. & K. 15; Wordsworth v. Wood, 2 Beav. 28; Taylor v. Beverley, 1 Collyer, 108, 111; Neathway v. Reed, 17 Eng. L. & Eq. 150; Pope v. Whitcomb, 3 Russ. 124; Gibbs v. Tait, 8 Sim. 132; Buckle v. Eawcett, 4 Hare, 536; Wordsworth v. Wood, 1 Cl. & F. (N. S.) 152; 15 Sim. 1, 139; 2 Collier, 85; 1 Vesey, Jr. 408, note to Sumner’s ed.; 2 Jarman on Wills, 649-50-1; Hulbert v. Emerson, 16 Mass. 244; Holcombe v. Lake, 4 Zabr. 686; Williamson v. Chamberlain, 2 Stock. Ch. 373; Biddle v. Hoyt, 1 Jones,’ Eq. 159; Vass v. Freeman, 3 Jones’ Eq. 224; Hilliard v. Kearney, Busbee’s Eq. 221; Schoppert v. Gillam, 6 Rich. Eq. 83; Carson v. Kennerly, 8 Rich. Eq. 259; Evans v. Godbold, 6 Rich. Eq. 26.

The record does not furnish any evidence of the circumstances surrounding the testator when the will was made. In the 2d clause, mention is made of a daughter, and bequests are made to his grand-children,the children of this daughter. It may be that this daughter had died before the making of the will; and if so, that circumstance might be considered as shedding an important light upon the meaning of the words ‘my surviving children.’ — See Hansford v. Elliott, 9 Leigh, 96 ; Neathway v. Reed, 17 Eng. L. & Eq. 161 — 3; Martin v. Kirby, 11 Gratt. 75. Without the benefit of such aid as might be derived from a knowledge of the condition of the testator’s family, and of the other extrinsic circumstances surrounding him at the time the will was executed, we prefer to withhold any definitive opinion as to the period of time to which the words of survivorship are to be applied. Indeed, the exigencies of this ease "do not require that we should express an opinion on this point. Eor, if we concede that the words “ surviving children” embrace all those who survived the testator, and are not to be considered as descriptive of such only of the children as should be living at the death of the tenant for life; still, it by no means follows, that under this clause of the will, the administrator of one of the children who died during the tenancy for life, leaving children who survived the life tenant, would be entitled to a share of the property as assets of the estate of such deceased child. Supposing the words of survivorship to relate to the death of the testator, and thus to include all the children who survived that event, the true construction of the alternative words, “ or their children,” would be, that they were designed to provide for the children of any child of the testator, who, though surviving the death of the testator, might die in the life-time of the tenant for life, leaving children; and that on the happening of sucha contingency, the interest which, on the death of the testator, vested in such deceased child, would be divested, and his children would take by substitution for him. “ A bequest to A for life, and after his death to B or his children, is held to create a substitutional gift in favor of the children of B, in the event of B dying in the life-time of A.” — 2 Jarm. Wills, 666, 664-5; 1 Jarm. Wills, 454; Girdlestone v. Doe, 2 Sim. 225 ; Hervey v. McLaughlin, 1 Price, 261; Jones v. Torin, 6 Sim. 255; Shailer v. Groves, 6 Hare, 162; 2 Wms. Exrs. 956; 2 Spence’s Eq. Jur. 472 ; Sugd. Prop. 411-12. See, also, Martin v. Kirby, 11 Gratt. 76-7 ; Browne v. Lord Kenyon, 3 Madd. 410 : 25 Wend. 143, opinion of Walworth, Ch.; Kersh v. Yonnge, 7 Rich. Eq. 100; Lowry v. O’Brien, 4 Rich. Eq. 262; Lejeune v. Lejeune, 2 Keen, 701, and noie; Gettings v. McDermott, 2 M. & R. 69 ; Salisbury v. Petty, 3 Hare, 85.

The words, “-my surviving children, or their children,” literally construed, would embrace only the children who should survive and their children. Still continuing the supposition that the words of survivorship relate to the death of the testator, — if “ their children” means the children of the testator’s “ surviving -childi'en,” and the construction which is above suggested of the alternative words is rejected, it is impossible to render this provision of the will at all sensible, without reading “ or” for “ and;” a liberty which courts sometimes take, but only in cases where it is clearly authorized by the intention and meaning of the testator, as collected from;- the whole will. O’Brien v. Heeney, 2 Edw. 248 ; Speakman v. Speakman, 8 Hare, 185, (note to the Amer. ed.) and cases cited. It certainly would be a forced construction of this will, to hold that the testa.tor intended the property to be divided among his surviving children, and the children of his surviving children. Upon that construction, such children and grand-children would take per capita, not per stirpes. Smith v. Ashurst, 34 Ala. 208; Wessenger v. Wessenger, 9 Rich. Eq. 459; Barksdale v. Macbeth, 7 Rich. Eq. 125. Such a distribution of the property would defeat the obvious wishes of the testator.

Whether, therefore, we interpret the words ‘ my surviving children’ to embrace all the children of the testator who survived his death, or as .only including those who might be living when the life estate of the widow fell in, the result is still the same. Hence, without at this time deciding to what period these words of survivorship are applicable, it is sufficient for us to say that, upon the whole ease as made by this record, our opinion is, that William S. Sharp having died in the life-time of his mother, leaving children who survived her, the appellant, as his administrator, was not entitled, under the 3d clause of tbe will of William Sharp, to any share of tho property, to be administered as assets of the estate. It follows, that the court erred in charging him with the amount received from the executor of William Sharp.

It appears that the will of Wm. Sharp was made in Georgia. But the decisions of the courts of that State, in reference to the rules for construing words of survivor-ship and substitution in wills, were not proved on the trial, and are not before us as evidence in the case. Whether the result would have been different, if those decisions had been made part of the evidence, we need not inquire. Upon the record as it now stands, we feel bound to give the will such construction, as would be given to a will in the same words, executed in this State.

Decree reversed, and cause remanded.