Smith v. Chadwick , 111 Ala. 542 ( 1895 )

BRICKELL, C. J.

The gift in the will of the testator, James Smith, to his wife, Louisa, is of an express estate for life — there is no event or contingency provided, in which it could endure beyond that period; while'there is an event or contingency expressed, her marrying again, which might terminate it before its natural expiration. The doctrine is, as is suggested in the argument of the counsel for the appellee, that when there are clear words of gift, the courts will not permit the gift to be defeated, unless it be clear chat the case has happen-'" ed, in which it is declared the interest shall cease. — Sherrod v. Sherrod, 38 Ala. 537. The rule applies when prior or particular estates are created. If the ulterior estate is expressed to arise on a contingent determination of the preceding interest, and the prior gift in event has taken place, but is afterwards determined in a different mode from that expressed by the testator, the ulterior gift fails. If the gift to the wife ha*d been of an absolute, .not of a qualified or limited estate — of the fee,' and not of an estate which could not endure beyond her life — the ulterior gift to William Henry .Smith and his children, could not have taken effect, unless the widow had married again, for that would have been the event : or contingency, and the only event or contingency expressed, on which the gift could have taken effect. But the gift to the wife was expressed to be for’ life, and the rule is settled as it is stated by Mr. Jarman : “When a testator makes a devise to his widow for life, if she shall 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 marrying again, but takes effect at all events on the determination of her estate, whether by marrying or death.” — 1 Jarman on Wills, 804; Frey v. Thompson, 66 Ala. 287. The death of the widow terminated her life estate, and the remainder over to William H. and his children, immediately vested in enjoyment.

There is no intent and purpose more clearly manifest- ' ed by the will, than' that the testator did not' intend to die intestate — that he intended to dispose of all his estate or property, real or personal. Courts are reluctant so to construe a will as. to create partial intestacy. If there b.e room for . presumption, the presumption is, that when a sane testator engages in so solemn and important an act, as the execution tion and publication' of a last will and testament, he does not intend leaving undisposed of any .portion of his property. The theory of the appellees, .that as to the lands the testator died intestate, would blot out and annul the express gift in remainder to William H. and his children, and do violence to the plain, intent of the testator, to make an entire disposition of itis estate.

The chancellor erred in overruling the' demurrers, and the decree must be reversed, a decree rendered sustaining. the demurrer, and the cause remanded.

Reversed, rendered and remanded.