Doe ex dem. Pope v. Pickett , 65 Ala. 487 ( 1880 )

BRICKELL, C. J.

— In Goodman v. Winter, at the last term (64 Ala. 410-38), many of the questions now presented were decided adversely to the appellee. We there held, that the devise and bequest in the will of the testator, George R. Clayton, to his children, created a tenancy in common; the sons taking an entirety, the daughters an estate for life, with remainder to their childreu, which was subject'to open and let in after-born children ; that the tenancy in common continued, until there was a partition, which the children were by the will requested and authorized to make voluntarily, without resort to legal remedies ; that when the partition was made, identifying the share of each child, 4he tenancy was dissolved, and each held in severalty ; that it was not of importance, the children made the partition of the lands situate in this State, before the will was here admitted to probate ; that the estate of the devisees vested on the death iff the testator, to which period the probate of the will, when effected, had relation; that there was no estate intervening between that of the testator and the devisee — that the probate did not create or vest, but simply supplied legal and conclusive evidence of the title of the latter. It is only necessary now to say, we adhere to these conclusions; and that no one of the numerous objections which have been urged in the course of this litigation to the probate of the will, or to the partition of the real estate made by the devisees, can be sustained.

2. It is insisted, the lands situate in this State did not pass under the will; that the intention of the testator was to pass only so much of his estate as was situate in the State of Georgia. This intention is supposed to be manifested by the direction in the will, that the memorandum of the division of the estate among the children should be returned to, and recorded in the Superior Court of Baldwin county, Georgia, the county of the testator’s residence. No words, more expressive of the testator’s intention to dispose of all his estate, real or personal, could have been employed, than such as are found in the devise — “ my estate, reed, and personal ” ,• no words more exclusive of all presumption of an intestacy as to any part of his estate. The whole scheme of the will — -an equal division of the estate among his children, each child accounting for advancements — can be carried into effect, only by regarding the devise according to its controlling terms, as passing all the estate of the testator, which was capable of being devised or bequeathed, without regard to its locality. The county of his residence was that in which there must have been original probate of the will; and it was the forum of the principal administration of the estate. It was but natural he should wish that in the records of some court of that county there should be preserved evidence of the amicable division of his estate, which he enjoins it upon his children to make, without intending to lessen the quantity of -the property devised and bequeathed by the general terms he had employed.

3. It is next insisted, that the remainder to the children of Mrs. Holcombe was defeated, by her alienation in fee simple of the premises, to Dargan. There has never been in this State, with the exception of grants, any conveyances in use, not deriving their operation from the statute of uses, of which our statute of 1812 (Clay’s Dig. 156, § 35), and the present statute (Code of 1876, §§ 2195-6), each is a substantial re-enactment. — Horton v. Sledge, 29 Ala. Rep. 478. By feoffment, or by fine, — under the operation of canons of the ancient common law, never adopted here, and unsuited to our law of tenures; destroying the nature the particular estate, altering its quality and quantity, — a contingent remainder could be defeated. Between all such wrongful conveyances, and the innocent conveyances deriving operation from the statute of uses, a distinction was at common law observed. The latter had no effect upon contingent remainders, because, by their very nature, they were incapable of passing any greater estate than the grantor could lawfully convey. — 4 Ñent, 276; 2 Washb. Beal Prop. 547. The deed to Dargan was of simple bargain and sale, passing no more than the grantors could lawfully convey; that was their own estate or interest in the premises, and was as incapable of affecting the estate in remainder, as would have been an alienation by a mere stranger who was without estate or interest to convey. — Dennett v. Dennett, 40 N. H. 498.

4. The revivor in the name of the surviving husband and of the children of the deceased lessor, Mildred E. Bichardson, was had in the Circuit Court without objection ; and thereafter the cause proceeded to trial on the merits, upon the plea of not, guilty. If there was error in introducing the children as parties, we incline to the opinion, it was waived by the failure to object when the revivor was had. However this may be, it is apparent there would be great injustice in now entertaining an objection to it, and affirming a judgment rendered without regard to it. The appellants would be deprived of the opportunity of curing the error by amendment, — a clear legal right, — because from the necessity for it their attention had been diverted by the failure of the appellee to interpose all objection to it. — Tarver v. Smith, 38 Ala. 138.

The designation of the deceased lessor as Ruth, in the order of revivor, instead of Mildred E., her true name, is a mere clerical error, as is apparent from all other parts of the record. It is incapable of working injury to any of the parties, and may be corrected by amendment.

The Circuit Court erred in the charge given to the jury ; and the judgment must be reversed, and the cause remanded.