Pendley v. Madison's Adm'r , 83 Ala. 484 ( 1887 )

SOMERVILLE, J.

-1. The present action, which is one of ejectment under the statute, was properly brought in the name of the personal representative of the deceased testator, whether his purpose was to recover the lands with the intention to sell them for distribution, or for the payment of debts. The right to maintain the action is conferred on the personal representative by the statute, and, in this case, is instituted against strangers, and not against the remainder-men under the testator’s will. — Morgan v. Casey, 73 Ala. 222; Leatherwood v. Sullivan, 81 Ala. 458; Landford v. Dunklin, 71 Ala. 594.

2. Both parties to the suit claim to have derived title from the same common source — James Madison, the testator of the plaintiff. The whole contention, therefore, resolves itself into one as to the relative superiority of the two claims of title put in evidence before the court on the trial, each party being estopped from- denying the validity of Madison’s title. —Gantt v. Cowan, 27 Ala. 582; Pollard v. Cocke, 19 Ala. 188; Simmons v. Simmons, 78 Ala. 365.

3. The interest which Mrs. Madison acquired under the will of her husband was undoubtedly a life-estate merely. It vested in her the use of the testator’s property, real and personal, “for and during her natural life.” The limitation over to the remainder-men, of all the property which, in the words of the will, “shall not have been used up by her, or be dead or destroyed,” would not operate by implication to enlarge the estate of the life-tenant into an absolute title. The clear terms in which the first item of the will created an express estate for life, negatived all intention to confer on the widow any absolute power of disposition during her life, or even after her death.—Weathers v. Patterson, 30 Ala. 404; Denson v. Mitchell, 26 Ala. 360.

4. The deed of Mrs. Madison to Hisan, under whom, defendant claims, conveyed nothing more than the grantor herself owned, which, as above said, was a life-estate only. The defendant’s possession, therefore, under such a conveyance, could. not in its origin be adverse to the title of the remainder-men, in whose right the plaintiff claims in this action. The rule in such cases is, that a conveyance by a life-tenant does not convey or affect the estate in remainder; and the statute of limitations does not commence to run in favor of the purchaser, until the termination of the life-estate, because until then his possession is not adverse to the remainder-men.—Pickett v. Pope, 74 Ala. 122; Pope v. Pickett, 65 Ala. 487; Smith v. Cooper, 59 Ala. 494; Thrasher v. Ingram, 32 Ala. 645.

The life-tenant in the present case did not die until September, 1884, or about one year before the bringing of this suit.

The plaintiff was entitled to the general charge given by the court, and the judgment must be affirmed.