Frey v. Thompson's Adm'r , 66 Ala. 287 ( 1880 )

BRIOKELL, C. J.

The testator, by his will, devises the real estate in controversy, directly and immediately, to his widow, in terms which carry the fee simple. The estate is, however, subject to be divested upon a single event, or contingency, — -the marriage of the widow. There is no other event or contingency provided, in which the estate is to cease and determine, and no gift over on its determination, except to the widow. The rule is, that where there are clear words of gift, the courts will not permit an absolute gift to be defeated, unless it is clear that the very event or contingency has happened, in which it is declared that the interest shall cease. It is not to be inferred, or implied, that the absolute gift is infringed, further than is expressed.—Sherrod v. Sherrod, 38 Ala. 537; Harrison v. Foreman, 5 Vesey, 207.

A like rule prevails, when prior or particular and ulterior estates are created. If the ulterior estate is expressed to arise on a contingent determination of the preceding interest, and the prior gift has in event taken place, but is afterwards determined in a different mode from that which is expressed by the testator, the ulterior gift fails. — 1 Jarman on Wills, Bigelow’s ed., 803. It is upon the exception to this rule the appellee relies, which is thus stated: “When a testator makes a devise to his widow for life, if she shall so long continue a widow, and if she shall marry, then over; in which the established construction is, that the devise over is not dependent on the contingency of the widow’s marrying again, but takes effect at all events on the determination of her estate, whether by marriage or death.” — 1 Jarm, Wills, 803. Or, as it is stated in the recent case of Underhill v. Roden, 2 Law Rep., C.h. Div. 496 : “ Where a testator gives to a woman a life interest, if she so long remains unmarried, and then directs that, in the event of her marriage, the property shall go over to another; although, according to the strict language, tlie gift over is expressed only to take effect in the event of the marriage of the tenant for life, the gift over is held to take effect, even though the tenant for life does not marry.” But the exception does not apply, when there is an absolute estate given to the widow, and thereon is engrafted a devise over, to take effect on her marriage : then the general rule applies, that a clear vested interest can be devested only upon the happening of the precise contingency expressed. 1 Jarman on Wills, Bigelow’s ed., 804.

There is often much of difficulty in determining whether the event of not marrying is interwoven into the original gift, thus creating an estate durante viduitate only, or whether it is a condition or contingency on which the estate is to be devested and determined.—Bainbridge v. Cream, 16 Beavan, 25; Meads v. Wood, 19 Beavan, 215. When all the words of the present will are read together, the intention of the testator is plain, and it is that intention which must prevail — a gift of an absolute estate to the wife, to be devested and determined on this express condition only, that she should marry again ; and not a gift to her for life, or during widow'hood.—Sheffield v. Lord Orrery, 3 Atk. 283. Upon any other construction, though it is apparent the testator intended to dispose of his whole estate, and not to die intestate as to any part thereof, real or personal, a partial intestacy would be produced. For, in the event of the marriage of the widow, there is no gift or devise over, except of a child’s part to her, the quantity of which can be ascertained only from the statutes of descents and distributions. Courts are disinclined to construe wills so as to produce partial intestacy. — 1 Jarman on Wills, Bigelow’s ed., 851. Tire purposes of the testator seem clear: his widow was the' primary object of his bounty, the mother of his children. If she did not marry again, the children would take from her, as they would take from him if she should marry. Having, doubtless, confidence that she would be just and generous to her and his children, he gives and devises to her the absolute estate, subject to be devested if she. should marry again, introducing a stranger to share it with her, and probably having' issue to take from her who would be alien to his blood. Besides, the gift over to the widow of a child’s part of the estate, real and personal, if she married, indicates clearly an intention to make a provision for her in that event, which defeated and devested the absolute estate already given to her.

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