Crawford v. Engram , 153 Ala. 420 ( 1907 )

HARALSON, J.

— The first item in the will of Jacob Ramser provides: “It is my Avill and desire, and I give and bequeath to my beloved wife, during her natural life, the homestead on which I reside, and all the land attached thereto, supposed to be about three acres, also all the household and kitchen furniture in use in my family. It is my further will and desire, that at the time of the death of my said wife, Mary Ramser, said homestead and said household and kitchen furniture shall be sold by my executors hereinafter named, and the proceeds of said sale divided equally betAveen such of my children, as I have made no special provision for, in this my last will and testament, share and share alike.”

After making special bequests to all of his children but three, he provides in the eighth item, that his executors sell all the residue of his property, in the manner prescribed therein, and then adds, “And the proceeds thereof shall be divided equally between my three remaining children for whom I have made no special provision in this my last will and testament, toAvit, Mrs. Mary Bowers, wife of Thomas BoAvers, Mrs. Frances R. Tripp, wife of T. H. Tripp, and Major L. Ramser, share and share alike.”

It is thus by this item made certain, if it were not certain before, to which of his children he referred, in item-1 of his will, in using the expression, that the proceeds of the property mentioned “shall be divided equally, between such of my children, as I have made no special provision for, in this my last will and testament, share and share alike.” Without item 8 of the will, the children referred to, in this last clause of item 1, might have been made certain, but in item 8 he declares who they are.

The complainant’s contention is, that under the will of said Jacob Bamser, deceased, her former husband, Major L. Bamser, had and held a vested remainder in his portion of the estate of his father, and that as his sole legatee, she inherited and took the vested remainder of her said former husband. By his last will, said Major L. Bamser gave her absolutely and without limitation the property he was entitled to under the will of his father, so that, if he had a vested remainder under item 1 of the Avill of his father, his Avife, the complainant, Avas entitled to it under his will.

The contention of the defendant is, that the interest of Major L. Bamser, under the Avill of his .father, Avas a contingent legacy, but if vested, it was divested by the death of the testator prior to the death of the life tenant, Mary Bamser, the wife of said Jacob Bamser.

We need not consider the last proposition, for if the estate of Major L. Bamser, under the Avill of his father, vested in him, at the death of his father, then the death of the life tenant could not divest it, without provision to that effect in the Avill of his father, and there Avas no such provision in his will. The only question, therefore, we have to consider is, whether the legacy of said Major L. Bamser, under item 1 of the will of his father, Avas a vested or contingent remainder.

' The chancellor held that the legacy was vested, and complainant was entitled to it under the will of her husband. He rested his opinion, as to both questions mentioned, on the case to which he refers. He said: “It seems to me, that the case of Smaw v. Young, 109 Ala. 526, 20 South. 370, settles both of these points after a very full consideration. Upon the happening of the contingency, by which the precedent estate fell in, it is provided in the will construed in said case (Smaw v. Young), as follows: ‘All of the property shall be equally divided between the surviving children of my daughter, Jane T. Smaw and Sarah A. Smaw.’ The will to be construed in this case has the following provision, with reference to the remainder: ‘That the property shall be sold by my executors hereinafter named, and the proceeds of said sale shall be equally divided between such of my children as I have made no provision for.’ About the only substantial difference between the facts creating remainders in the two cases, is that, in the one, only the survivors of the class should take, there being no such provision in the other. It was there held, after a full consideration of the question, that notwithstanding the provision.that only the survivors take, they (the survivors) each possess individually a vested remainder. The case at bar is much stronger than the other, in that the three (who should take) are particularly referred to as parties among whom the division is to be made. It was held in the case above cited, that the (surviving) remaindermen took vested remainders, and in order to carry out the intention of the testator, it was held by the court, that such vested remainder became divested by the death of the party before the falling in of the precedent estate. There being no such intention manifested in this case by the testator, it follows that the remainders are vested remainders, and not subject to be :divestecl by death before the falling in of the precedent estate. The same argument made by the respondent ■would be applicable to the provision of the will in the authority above cited, for in both instances, it was only ■provided that the property should be divided upon the contingency named, without bequeathing such property either to the executors to sell, or to the remaindermen direct. In both instances it is merely provided, that a division shall be made, and therefore the ‘distinction’ would apply as well to the one as to the other.”

In High’s Adm’r v. Worley’s Adm’x, 32 Ala. 709, it was held that a legacy in the words, “All household and kitchen furniture, and the stock of every description whatsoever (be held and retained by my executor), until my daughter, Fanny Ann, shall arrive at the age of sixteen years; then to be sold, and the proceeds equally divided between my wife and children, share and share alike,” created a vested legacy in the children.

The general rule for determining whether a bequst is vested or contingent, is that when time of division is of the substance of the gift, then the legacy is contingent, but when time is mentioned only as a qualifying clause of payment or division, then the legacy is vested. — Marr v. McCullough, 6 Port. 507.

The law inclines to regard legacies as vested, rather than contingent, and the rule is applied when the intention is obscure or doubtful. — Andrews v. Russell, 127 Ala. 195, 28 South. 703; Bethea v. Bethea, 116 Ala. 271, 22 South. 561; Acree v. Dabney, 133 Ala. 437, 32 South. 127.

While it is “a general rule, where there are no words importing a gift other than a direction to the executors to divide or pay at a future time, the legacy is contingent and does not vest until that time arrives,” yet “the rule has been most generally applied in cases where the gift is to children or grandchildren, as a class, and the beneficiaries, as to their identity and number, can ouly be definitely ascertained at a future time. The courts will hesitate to apply the rule where the gift is to legatees by name,” particularly where an inspection of the “four corners of the will” shows a different intent. — 3 Am. & Eng. Ency. Law (2d Ed.) 771, 773, and notes.

It appears from the entire will that he had provided for his other children, and that his intention ivas to appropriate the remainder of his estate to the three children named, subject to the enjoyment of the life estate by the wife.

We are led to approve the decision of the chancellor, holding that complainant’s husband took a vested interest in the estate of his father, to which she succeeded and ivas entitled under the will of her husband.

Affirmed.

Tyson, C. J., and Simpson and Denson, JJ., concur.