Banks v. Jones , 60 Ala. 605 ( 1877 )

STONE, J.

The arguments of counsel for appellants present but a single question for our investigation, and we propose to confine our decision to that one question. Does the will of Benjamin Sherrod give to Alice Clay Sherrod, now Mrs. Banks, any interest in fee, or beyond her minority, in the lands in controversy? The clause of the will which bears on this question is in the following language :

“ I devise to the family of my deceased son, Eelix A. M. Sherrod, the plantation purchased of John T. Hickman, John Glass, and others, known as the Pond Spring plantation ” (and many slaves and other personal property not involved in thisjsuit). “During the widowhood of my daughter-in-law, Sarah Sherrod, the property devised to the family of my deceased son, Eelix A. M. Sherrod, shall be kept together and managed by my executors for the benefit of herself and children; but, in the event of her marriage, she is to receive a child’s part of the negroes devised as aforesaid, together with the household and kitchen furniture, and the carriage and horses; which property shall be hers for and during her natural life, provided the negroes are not removed from this State; in which event, she forfeits her life-estate, and my executors are to take the necessary steps to recover the property for the use of her children by her first husband. The land devised for the benefit of the family of my deceased son, Eelix A. M. Sherrod, I give to my grandsons, Benjamin and Erancis Edwin Sherrod, to be equally divided between them when the youngest shall arrive at the age of twenty-one years; the said land, however, to be used for the benefit of the widow and all her children, subject to the conditions before mentioned. My grand-daughter, Alice Clay Sherrod, shall be entitled to receive an equal portion of the negro property when she arrives at the age of twenty-one years or marries ; the whole property to be held and kept together for the joint benefit of the family, unless the widow should marry, and then for the benefit of the three children.”

The different clauses of the extract above given are not so reconcilable as to give to each complete and independent operation. The general intent was to give to the family of the deceased son, Felix A. M. Sherrod, a support, and, to this end, testator directed that the property, real and personal, “ be kept together and managed by (his) executors.” But this direction was not without limit in duration. It was to be during the widowed life of his daughter-in-law, Sarah Sherrod. When that ceased, either by her marriage or death, then this use, or servitude, as declared in this clause, was to cease. To hold otherwise would be to declare that the following clause is meaningless and nugatory, viz.: “The land devised for the benefit of the family of my deceased son, Felix A. M. Sherrod, I give to my grandsons, Benjamin and Francis Edwin Sherrod, to be equally divided between them when the youngest shall arrive at the age of twenty-one years.” Why. divide the land between the two sons, if they and their sister were to be equally interested in the fee ? If it was intended that the sister was to have an equal interest with her brothers in the land, whjr not say so, and not leave it to be inferred from a doubtful and ambiguous clause ? Why say the plantation and personal property shall be kept together and worked for the benefit of the widow and children, and then employ the strong word give, when the youngest son becomes of age ? and, lastly, why say that “ Alice Clay Sherrod shall be entitled to receive an equal portion of the negro property, when she arrives at the age of twenty-one years or marries,” if the intention was that she should receive an equal portion of both real and personal property ? We think the conclusion of the clause copied above, in reference to the division of the land, strengthens the view that the sons alone were to own the land. Its language is : “ the said land, however, to be used for the benefit of the widow and all her children, subject to the conditions before mentioned.” The conditions before mentioned were, that the widow should not marry again; for, if she did, then her right to share in the use and benefit of the land would cease. The plain meaning of this clause is, that notwithstanding the division and gift to the sons, when the youngest become of age, the family, if the mother remained unmarried and in life, was to share jointly in the use and benefit of the land. This was a use and enjoyment carved out of the fee, or made a charge upon it, if the contingency happened.

The last clause is relied on, as showing that Alice Clay was to have a permanent interest in the land. This comes immediately after the clause giving to her an equal portion of the negro property, when she arrives at the age of twenty-one years or marries, and is in the following language : “the whole property to be held and kept together for the joint benefit of the family, unless the widow should marry, and then for the benefit of the three children.” We can not think this was intended to neutralize and destroy the two clauses of the will we have commented on above; namely, the clause which provides for the division of the land between the two sons, when the youngest should reach the age of twenty-one, and the clause which gives to Alice Olay an equal share in the slaves, when she should attain the age of twenty-one years. These clauses are clearly expressed; and to hold that the property, real and personal, was to be kept and worked together for the common benefit, for an indefinite time, would be to leave to them no operation or effect. Eor, why divide the land between the two sons, and why set apart an equal share of the slaves to the daughter, if no change in the use and ownership of the property was to be thereby effected ?

We think this clause was inserted, merely for the purpose of carrying out the general intent of the will; namely, to provide for the common and united support of the family, so long as it remained one by the continued life and widowhood of Mrs. Sarah Sherrod, the widow of Eelix A. M. Sherrod ; and afterwards, during the minority of Alice Olay, should her mother die, or again marry, during that time. This construction gives operation to all the clauses, expunges none of the words of the bequest, and we adopt it as the true construction of this clause of the will.

There is no claim or proof, in this record, that the property was not kept together, and worked as the will directs, until after the death of Mrs. Sherrod, and until after Alice Clay reached the age of twenty-one years ; and we hold, that whatever interest the will gave her, in the use and products of the lands, Avas clearly at an end at the happening of the last of those two events.

We fully concur in the views and conclusions of the chancellor, and his decree is affirmed*