Adams v. Mason , 85 Ala. 452 ( 1888 )

STONE, O. J.

The question in this case is the proper interpretation of the fourth clause of A. Jeter’s will. By the first clause, the testator devised to Dinah Adams certain described real estate; and by the second, he bequeathed to her certain personal estate. Each of these dispositions was to her “during hex natural life, or until she may marry,” with a remainder over to her five children by name. By the third clause, he gave to Dinah Adams provisions for herself and children, and food for her stock, for one year. By the fifth and sixth clauses, he gave to Dinah Adams all his wagons, vehicles, and farming untensils; and to James, one of her children, he gave his gol$ watch and chain. The seventh clause is a residuary gift and bequest of the residue of his estate to two named nieces, Savannah and Regina Wilder, for equal division between them.

The fourth clause is in the following language.» “I also give and bequeath to said Dinah, for and during her natural life, or until she may marry, twenty-five hundred ($2,500.00) dollars, to be provided by my executor out of my estate; said twenty-five hundred dollars to be used by said Dinah in the support and education of her five children.”

The chancellor decided and decreed, that the five children, the beneficiaries under the fourth clause, took an estate in the said fund of $2,500, only so long as the said Dinah may live and remain single; and that at the happening'of either of the two named events, the bequest was intended to go over to the two nieces, under the residuary clause. And he directed and decreed that the said fund be invested in interest-bearing mortgage security, secured on land, and the interest collected and paid over to the said Dinah annually, so long, and only so long, as she may live and remain unmarried; at her death or marriage, the principal to be paid to the residuary legatees. ' In his decree he conformed to the rule declared in Mason v. Pate, 34 Ala. 379, if he rightly interpreted the will. See, also, Dunham v. Milhous, 70 Ala. 596; Bolman v. Lohman, 79 Ala. 63.

It is not controverted in this case, that whatever interest Dinah took under the fourth clause of the will is a trust, in which she has no beneficial interest. Her five children are the objects of the testator’s bounty, so far as this clause or item is concerned. This being his express will and object, it is difficult to conceive of any wish or motive he could entertain, for making that bounty dependent upon Dinah’s living and remaining single. The will clearly shows that Dinah and her five children were the primary objects of his testamentary bounty; and both the will and the record before us prove that the testator, at his death, owned an estate of no inconsiderable value. The interest or income of twenty-five hundred dollars invested, is two hundred dollars per annum, or forty dollars per capita for tbe beneficiaries. Common knowledge teaclies us that this sum is wholly inadequate for the “support and education” of the children.

We think, however, that the language of the bequest furnishes its own interpretation. Its express terms are: “said twenty-five hundred dollars to be used by said Dinah in the support and education of her five children.” Not the income or interest of the twenty-five hundred dollars, but the corpus, the thing itself. How lavishly or sparingly to be used, we are not informed. This was left to Dinah’s discretion, so long as she lived, and remained unmarried. And the expenditure of the fund being confided to Dinah’s discretion, without any direction as to the manner of its exercise, and without requiring her to account, this armed her with a general power of disposition, under which she was authorized to disburse the whole fund, provided she confined the outlay to the “support and education” of the children. A gift, conveyance or bequest, even when expressed to be for life, if coupled with a general power under which the whole fund may be disposed of, vests an absolute title in the first taker, which an implied remainder or reversion will not cut down to a life-estate. — Flinn v. Davis, 18 Ala. 132; Weathers v. Patterson, 30 Ala. 404; Bolman v. Lohman, 79 Ala. 63; Pendley v. Madison, 83 Ala. 484.

Dinah being only a trustee of the twenty-five hundred dollars, of course, it required no express terms to cut down her functions to the period of her life. They were to cease, however, in the event she married. This required express provision, for married women may be trustees. The words, “for and during her natural life, or until she may marry,” are a limitation upon her trusteeship. They do not curtail or affect the rights of the beneficiaries. Should the trust become vacant before its complete execution, a trustee will be appointed, on proper application, to carry its provisions into effect. The testator selected and designated his own trustee, to execute clause four of his will, and he required no security for its faithful performance.

So much of the chancellor’s order as requires the executor to lend said twenty-five hundred dollars on mortgage security is reversed; and a decree is here-rendered, directing him to pay said sum, if still in his hands, to the said Dinah Adams, taking her receipt therefor, to be subscribed as trustee under the fourth clause of A. Jeter’s will. Should the executor have put the money out on loan, then the order last above made is suspended, until the proper order is made in the premises by the chancellor, to carry the principles of our ruling into effect.

Reversed and remanded.