Worley's Adm'rx v. High's Adm'r , 40 Ala. 171 ( 1866 )

JUDGE, J.

In the court below, it was averred by way of plea on the part of the defense, and the averment was sustained by the written admission of the parties, made to be used in evidence on the hearing of the cause, that the widow of the testator intermarried with Nathan D. Worley, on the 18th of February, 1834. What, under the will, was the effect of the marriage of the widow ?

When this cause was heretofore in this court, this question was not considered — indeed, was not then presented by the record. The decision then pronounced was on a demurrer to the bill, for the want of equity; and the bill contained no allegation of the marriage in question. Another difference between the case as then presented, and as it now stands before the court, is this: Then, it appeared that Mrs. High died before Fanny Ann had arrived at the age of sixteen years; and the decision of the court was based, in part, upon this supposed fact; (High’s Adm’r v. Worley’s Adm’rx, 32 Ala. 709;) while now, it appears that she died about eleven months after the arrival of that period. But the view we take of the case renders it unnecessary to consider the effect, if any, of this change.

1. The testator dedicated the whole of his property to the use and support of his wife and children, until Fanny Ann should attain to the age of sixteen years; provided his wife did not “connect herself in marriage” before the arrival of that period. If she remained unmarried, the property was to be “held and retained,” for the use and support of herself and the children, in common, for the period named; then it was to be sold, and the proceeds equally divided between them. But, if his wife should marry before Fanny Ann arrived at the age named, an important change in the condition of the estate was to be effected. In that event, the testator intended that the right of his wife to the use of the property in common with the children should cease, and that the executor should no longer hold it for that purpose ; but, that he should, “in that case,” “sell, rent, or lease” the property, as he might think “most for the interest” of the legatees; and that “ in either case,” his wife should “receive a child’s part.”

The only purpose for which the testator authorized his estate to remain unsettled, beyond the period necessary for an ordinary final administration, was, that his wife and children might have the nse in common of the property, for their support, for a specified time. When an event occurred which, by the terms of the will, prevented the consummation of this purpose, there was no authority to postpone a final settlement to any remote particular period. What purpose was to be accomplished by such a postponement ? None was named by the testator, and none can be supplied by judicial interpretation, without adding terms to his will.

The power conferred upon the executor, to rent or lease, was not required to be exercised for any specified period; and in conferring this power, it was not intended by the testator that the executor should rent or lease until Eanny Ann should attain to the age of sixteen, or that he should retain the property the same length of time for the use and support of the legatees, either one or the other in his discretion. The discretion conferred related exclusively to the selling, renting, or leasing; and if the executor should elect not to sell, but to rent or lease, what was intended by the testator as to the length of time this power should be exercised ? It could not have been intended that the duration of the power should rest in the discretion of the executor; and in the absence of any fixed period by the will for its existence, or of any named specific purpose to be accomplished by its exercise, from which the period of its duration might be inferred, the law would hold, that the power could be exercised for such period only as might be necessary, under all the circumstances of the case, to prepare the estate for final settlement, effect a proper sale, and bring the administration to a close.

This construction is in harmony with another important provision of the will, to which effect must be given. The testator directed that his wife should receive, in the event of her marriage, “a child’s partby which he meant an equal share with the children, severally, of the whole estate. What was intended as to the time when she should receive this share ? The will is silent on this question; but it must have been intended that she should receive it as soon as the estate was in condition for the property to be sold for its payment, together with the payment of the respective legacies to the children. The wife of the testator married ten years before Fanny Ann arrived at tbe age of sixteen. This marriage, by tbe terms of tbe will, as we have seen, excluded her from all participation in tbe use and enjoyment of the property of tbe estate; and if not entitled to receive tbe legacy bequeathed to ber, in tbe event of ber marriage, until Fanny Ann should attain to tbe age named, then, for tbe period of ten years, tbe wife would receive nothing. Tbe testator never could have intended the accomplishment of such a result as this. No allotment to ber of a child’s part, on a partition of tbe estate without a sale, could have been made; for, as was held by this court in another case between tbe same parties, one effect of tbe will in question was, “to transmute tbe land into personalty, and this gave to each legatee tbe right to have it sold, and toot away from each one tbe separate right to re-convert bis single share, and thus have tbe sale of a fraction.”— High v. Worley, 38 Ala. 196. A sale, then, was indispensable, and might have been enforced by tbe wife to enable ber to receive tbe legacy bequeathed to ber; and this, of itself, involved tbe necessity of a final settlement of tbe estate, which might have been coerced by either one of tbe legatees.

2. Having determined that tbe administratrix with the will annexed might have been called to a final settlement of tbe estate, on ber intermarriage with Nathan D. Worley, ' tbe next question is, what effect tbe lapse of time, which occurred between that event and tbe date of tbe commencement of this suit, has upon tbe cause ?

Three years elapsed between tbe date of tbe probate of tbe will, and tbe date of the marriage of tbe administratrix. Nancy E. High, appellee’s intestate, died ten years after tbe occurrence of tbe last named event; and more than twenty-one years elapsed, after tbe marriage, before tbe bill in this cause was filed.

As was observed by Stone, J., in McArthur v. Carrie's Adm’r, (32 Ala. 75,) “In this, as in most of tbe States of this Union, there is a growing disposition to fix a period, beyond which human transactions shall not be open to judicial investigation, even in cases for which no statutory limitation has been provided. This period is sometimes longer, and sometimes shorter; dependent on the nature of the property, and the character of the transaction. By common consent, twenty years have been agreed on, as a time at the end of which many of the most solemn transactions will be presumed to be settled and closed. — See, also, Rhodes v. Turner and Wife, 21 Ala. 210; Barnett v. Tarrence, 23 Ala. 463; Gantt’s Adm’r v. Phillips, 23 Ala. 275; Harvey v. Thorpe, 28 Ala. 250; Lay v. Lawson, 23 Ala. 377; Milton v. Haden, 32 Ala. 30; Wyatt’s Adm’r v. Scott, 33 Ala. 313; Austin v. Jordan, 35 Ala. 642. The case of Blackwell’s Adm’r v. Blackwell’s Distributees, (33 Ala. 57,) was excepted from the influence of this presumption, on account of the peculiar facts and circumstances of that case.

These legal presumptions, by which conflicting claims and titles are set at rest, are not always founded on the belief that the thing presumed has actually taken place. “Instead of belief, which is the foundation of the judgment upon a recent transaction, the legal presumption in matters of antiquity holds the place of particular and individual belief.” — Giles v. Barremore, 5 John. Ch. Rep. 545. Grants have repeatedly been presumed, in England, against the crown; “ not that the court really thinks, as Lord Mansfield observed, that a grant has been made, because it is not probable that a grant should have existed without its being upon the record, but they presume the fact for the purpose, and from a principle, of quieting the possession.” Giles v. Barremore, supra; Eldridge v. Knott, Cowp. 214; Hillary v. Waller, 12 Ves. 252; Johnson v. Johnson, 5 Ala. 90. As Chancellor Kent has said, (Giles v. Barremore, supra,) “These presumptions, to be drawn by the courts, in the case of stale demands, are founded in substantial justice, and the clearest policy. If the party, having knowledge of his rights, will sit still, and, without asserting them, permit persons to act as if they did not exist, and to acquire interests, and consider themselves as owners of the property, there is no reason why the presumption should not be raised.”

In the case before us, the lapse of time, dating from a period when the administratrix might have been called to a final settlement of the estate, raises the presumption that the estate has been fully administered, and the respective legacies paid. The result is, that the decree of the chancellor must be reversed, and the bill dismissed; and the appellee must pay the costs of this court, and of the court below.

Byrd, J., having been of counsel in the court below, did not sit in this case.