Terry v. Hood , 172 Ala. 40 ( 1911 )

SIMPSON, J.

This is an action of ejectment (statutory) by the appellants against the appellees. The appellants claim as the grandchildren of Nancy Turner, who had the legal title to the lands in question. Said Nancy Turner left a will, which will he copied into' the statement of the case by the reporter. The defendants introduced a deed, purporting to have been executed by the plaintiffs and other heirs of said Nancy Turner, conveying the said property to one W. C. Mayhall on November 12, 1878; also evidence as to the execution, signatures, etc.; also proof of adverse possession for more than 24 years.

The plaintiffs denied the execution of said deed, and testified that they were not in the state of Alabama at the time said deed purports to have been executed. The will in question having been made April 30, 1851, before the “rule in Shelley’s Case” was abolished by statute in this state, and subsequent to the married woman’s law (Acts 1849-50, p. 63), by which the husband became trustee of the wife’s separate estate, the question argued in the briefs of appellants and appellees is as to the nature of the estate created by the will

There can be no controversy about the point that, unless the words “heirs of the body,” in.the will can be interpreted to mean “children,” the will created an estate tail, under the rule in Shelley’s Case, and, under the operation of the statute of 1812 (Clays Dig. p. 157, § 37), such estate was converted into a fee simple. (The same result would follow if the word “heirs’ in the first part of the deed were not controlled by the specific designation, “heirs of the body,” in the latter part.) — Mason v. Pate’s Ex’r, 34 Ala. 379, 385; Machen, Ex’r, v. Machen, 15 Ala. 373, 375, et seq.; Ewing v. Standefer et al., 18 Ala. 400, 404-405; Hamner, Admr, v. Smith, 22 Ala. 433.

While it is true that, when a will is evidently written by a person who is ignorant of the meaning of legal expressions, and there are, in the instrument itself, terms used which show that the testator intended “children” by the use of the word “heirs,” it will be so construed; but this conclusion must be reached, not merely by the supposition of the court, but by the words of the instrument itself. — Cases supra, and De Bardelaben v. Dickson et al., 166 Ala. 59, 51 South. 986.

The expressions in the will, “free from the control of her husband,” and “shall not be liable for any debts the said W. I. Terry now or may hereafter owe,” were evidently intended to create in the wife an equitable separate estate, as distinguished from both the statutory separate estate then existing by statute and an estate in lands held by a married woman at common law. Although the statute provided for a statutory separate estate, yet it was always recognized that by the express provisions of a deed or will a separate equitable estate could be vested in a married woman. This intention manifested in the will does not tend to show that the testatrix did not understand the meaning of the word “heirs,” or that she intended to say “children” in place of “heirs.”

In an early case, where the deed conveyed property to C. Y. P. “during her natural life, for her sole and separate use, free from the control or any liabilities or debts of her husband,” and afterwards “to the heirs of her body,” this court said the deeds “vest a separate estate in her by their terms, and expressly exclude the marital rights of her husband. ' It is true that the donors limit the property, after her death, to ‘the heirs of her bodybut this does not inure to the benefit of her husband. The only effect it can have is to vest an absolute estate in the complainant, who is the first taper.”— Bridges & Co. et al. v. Phillips, 25 Ala. 136, 138, 60 Am. Dec. 495.

In an other case, where the deed (made in 1840) conveyed to a trustee “for the sole private and independent use, benefit, and advantage of the said E. J. McO. for and during the time which she shall remain the wife of D. McO'., and, if she shall die before her said husband, then to the sole use and benefit of the heirs of her body forever,” and provided that the hire, use, etc., “are from time to time, and at all times during said coverture, to he and remain to the sole and separate enjoyment of said E. J. during her life, and after her death to the heirs of her body, and not subject nor liable to the control, authority, power, disposal, possession, or interference of her said husband,” it was held that the absolute title was vested in the trustee for the separate use of Mrs. McC., and that the words “heirs' of her body” were words of limitation and not of purchase. — McCullough and Wife v. Cliddon, 33 Ala. 208.

The appellants argue that the testatrix evidently did not intend that the husband of her daughter should have any control of or interest in the property, either during his wifes’ life or after her death, and she could not have intended, by the will, to create a fee simple in the wife, because thereby her intention would have been defeated, as the husband would he entitled to curtesy in the land on the death of the wife.

In the first place, even if the premise be correct, the conclusion does not follow; for the tendency of our decisions indicates that if, as we hold, the testatrix intended to create a separate equitable estate in the daughter, and supposed she had done so, the husband’s curtesy would he excluded. It is true that the case of Smoot v. Lecatt, 1 Stew. 590 holds that where the husband, by antenuptial agreement, renounced all his claim, right, title, or interest to any part of the wife’s property, he was not barred of his curtesy. In a subsequent case, however, this court held that, under a similar agreement as to personal property, the husband could not claim any interest in the same after the death Of the wife. — Randall, Adm’r, v. Shrader, 20 Ala. 338, 344. In the case of Grimball v. Patton, 70 Ala. 627, 635, this court, speaking through Stone, J., said (in regard to land held by the wife as a separate equitable estate) : “His marital rights never having attached to this property during Mrs. G.’s life, by reason of the words of exclusion in Dr. M.’s will, they cannot under our rulings attach after her death” (basing the conclusion on the analogy of personal property not reduced to possession). In a later case, this court, speaking through Stone, C. J., refers to this as a dictum, and, without deciding the point, criticises the Lecatt Case, and intimates concurrence in the dictum in the Grimball Case. — Carrington v. Richardson, 79 Ala. 106. In a later case, this court, speaking through McClellan, J., said: “The muniment under which J. held the land

vested it in her to her sole and separate use, and excluded all the marital rights of Antoni. It may be — indeed, we incline to this as the doctrine better supported by reason and authority, though we have an adjudication to the contrary (Smoot v. Lecatt, 1 Stew. 590) — that this fact, of itself, suffices to defeat an estate by curtesy in the surviving husband.” — Nicrosi v. Phillipi, 91 Ala. 299, 307, 8 South. 561, 563. In á very recent case, treating of the right of the husband as distributee of his wife’s statutory estate, this court said: “This doctrine is not in conflict in the slightest with what was said in the case of Nicrosi v. Phillipi.” Dake et al. v. Sewell et al., 145 Ala. 581, 585, 39 South. 819, 820. Under these decisions, even if we can presume that the testatrix was learned in the law, so as to consider the effect upon the husband’s curtesy of her attempt to ere-ate a separate estate in her daughter, we cannot infer that she meant “children” when she said “heirs,” because the use of the word “heirs’ would, defeat her purpose.

In the next place, the will does not intimate any intention to‘deal with his interest in her estate after her death, but only his control, which was a word well known in relation to statutory separate estates, and to the liability for debts created by him, evidently referring to debts created during coverture. It is not necessary to decide whether she did in fact create a separate equitable estate, or whether, if she did so, the husband would be barred of his curtesy; what has been said being merely to the effect that these expressions do not furnish a legitimate argument for supposing that the testatrix did not mean “heirs’ when she so expressed it, .In the third place, the statute which changes an estate tail into a fee-simple estate is not based upon the intention of the testator, but upon the public policy which forbids the creation of such an estate, though so intended.

It follows that the will created a fee-simple estate in the first taker, and, the adverse possession of 20 years being established by the defendants, then, without regard to the genuineness or not of the deed purporting to have been made by the plaintiffs, the court did not err in giving the general charge in favor of the defendants, nor in refusing the general charge requested by the plaintiffs.

The judgment of the court is affirmed.

Affirmed.

Anderson, Sayre, and Somerville, JJ., concur.