Rosenau v. Childress , 111 Ala. 214 ( 1895 )

HEAD, J.

We think the devise and bequest-to testator’s daughter, Susan W. Childress,.who subsequently married Read, plainly manifests its meaning. By it, the property mentioned, real and personal (the latter not being in controversy here), was given to Mrs. Read “to be held and enjoyed by her during her natural life, and after her death to be equally divided among her children, if she shall leave children, and if not then to be equally divided “among my other children, to be held by them in the manner before described.” The provision created an estate in Mrs. Read for her life, with remainder to the testator’s other children, contingent upon the death of the life tenant without children her surviving.— Campbell v. Noble, 110 Ala. 382; May v. Richie, 65 Ala. 602. If she had left children, they would have taken the remainder. She died without children. All the other children of testator died prior to the death of Mrs. Read. This possessory action isinstitutued by the grand-children and great-grand-children of testator against defendants, who hold and claim under remote conveyances from Mrs. Read, executed during her life estate. It is immaterial whether the meaning of the will was to confer the estate in remainder, contingently, upon the testator’s other children living at testator’s death, or upon those living at the death of the life tenant, for the result, in the present case, is the same under either interpretation. If the remainder to the testator’s children failed for the want of a person designated to take upon the happening of the contingency, the heirs at law of the testator took as reversioners, and the plaintiffs, being such heirs, or inheriting from them, are entitled.

The statute of 1812 abolishing estates tail nor the Rule in Shelley’s Case have any apiiiication here. It is true there have been, and may be deeds and wills so constructed, that the term ‘ 'children’ ’ would be properly interpreted as “heirs,” or “heirs of the body,” as the term may be, sometime, held to include grand-children ; and as “heirs” or “heirs of the body” may mean “children but these are not the ordinary and primary meanings of such terms, and to so construe them requires peculiarities of the instrument clearly evincing an intention to that end. — Campbell v. Noble, 110 Ala. 382, supra; Echols v. Jordan, 39 Ala. 24. It is not that a grant or devise to one for life with remainder, to his children, can ever, under the rules of the common law, create an estate in fee simple or fee tail in the first taker, but, in the cases of the kind to which we have just referred, the question is, as to how the will or deed should be read. When the grantor or testator said “children,” does the context and surroundings show that he did not mean it, in its primary sense, but meant “heirs,” or “heirs of the body?” If so, then the disposition will be read and enforced as if it contained the latter terms instead of the former. In the present devise, there is nothing whatever to indicate that the testator did not use the term, “children” (the children of Mrs. Reed) in its primary sense ; and to hold, in such a case, that the word meant “heirs,” would do extreme violence to the language employed, and practically merge the term “children” in that of “heirs.” The concluding clause of the will, called by counsel the constructional clause, exerts no influence upon the question in hand. The testator seemed to have the thought that his children for whom he made provision, might dispose of their estates, and deprive themselves and their families of the use and enjoyment of the same, which he desired they should have. He inserted the clause in question for the purpose of giving expression to that idea and to protect this family right. It could not possibly operate to enlarge the duration of the respective estates of his children, under the devises to them, respectively. If it had any effect, at all, upon such estates, it was to diminish their quantum, by letting in others — members of their families — to share interests therein. Apply it to Mrs. Read: It might be argued that if she hada family, the clause entitled its members to share in the estate devised to her ; but, by no means, that it enlarged.her estate to a fee. „

The statute of limitations did not begin to run against the plaintiffs until the death of Mrs. Read, which occurred April 20th, 1890. Until then there was no remedy, legal or equitable, open to them.

By agreement of parties no other question is to be considered. We will not be understood, therefore, as holding that all the defendants are jointly liable for damages for detention of property exclusively detained by each; nor that the defendants are not entitled to the benefit of the provision of section 2706 of the Code— Mrs. Read having died more than a year before the institution of the suit, and adverse possession having commenced at her death.

The circuit court properly construed the will, and its judgment is

Affirmed.