Kidd v. Borum

SAYRE, J.

In 1911 appellee filed her bill under the statute to settle the title to lands held by her. The cause was submitted on proof of the will of John W. Kidd, back to whom all parties tráce their titles, a certain deed of trust executed by him, and an agreed statement of facts, all which, so far as necessary to an understanding of the case, will he set out elsewhere. From the decree defining and settling the respective interests of the parties defendants have taken this appeal.

As will appear, in 1858 John W. Kidd executed and delivered the deed purporting to convey to trustees, upon the trusts therein set down, certain lands other than those in controversy. On the same day, but following the execution of the deed, Kidd executed his will, which was duly probated after his death in 1865. This deed, which was duly acknowledged and recorded, though it was testamentary in that part which authorized the trustees therein appointed to demand and receive of executors to be appointed any legacy or bequest which the grantor might give to his wife and the children of his second marriage, was not probated as a part of the will. It cannot therefore be recognized as a substantive part of the will. — Wood v. Mathews, 53 Ala. 1. However, regard may be had for its disposition in the construction of doubtful provisions of the will as constituting a part of all those attendant circumstances to which the court will look in order to learn the true intent and purpose of the testamentary language used, though such provisions as may be clearly located and ascertained within the four corners of the instrument cannot be affected or changed by considerations aliunde. In part at least the instrument of first execution was not of testamentary character, for it operated in presentí to pass title to the property therein described, though postponing possession, and was as to that title and its limitations not revocable. The nearness of the two acts to one another, their common purpose to make provision for the second wife of the grantor-testator and his children by her, and the reference of each to the other, lead the court, as far as may be without transgressing established rules of law for the transmission of property, to take them as one. — Matthews v. McDade, 72 Ala. 377. The will was not drawn by a skillful hand, and, standing alone, its provisions are to some extent contradictory and of doubtful import in respect to the estate conferred upon the widow. But, when considered in connection with the deed, it makes, in our judgment, the widow and her children at the time of testator’s death tenants in common of an estate for her life (Chandler v. Jost, 81 Ala. 411, 2 South. 82), with the remainder in fee of the whole estate to all her children. These purposes and dispositions the testator intended and attempted to accomplish through the intervention of trustees. There was never any conveyance of the land in question to trustees; but whether the trust which the testator intended to create was a dry trust, or was of such character as to require activity and discretion' of the trustees, equity will consider and treat the beneficial interest as having acquired the intended status in the first case because the trustees would have been useless incumbrances of the plan, in the second because no trust can be permitted to fail for lack of a trustee.

At one place in his will testator said: “I hereby give unto my beloved wife whatever real estate I may die seized and possessed of, situated in Shelby county.” But the will must be construed as a whole, testator’s intention being gathered from a consideration of all parts of it in connection, and in the forepart of the same sentence from which we have quoted above testator said: “Whereas I have in the providence of God been twice married and have children by each marriage. My first children have all left me and have, by way of advancement, received a part of.my estate hereinafter more particularly set forth, and I have by deed heretofore conveyed to my beloved wife, Mary Georgiana, and my children by her, through John M. Kidd and William Singleton, trustees, and in that deed given to. said trustees power and authority to demand of my executors such legacy or bequest as I might, in my will, give to my said beloved wife and children in said deed mentioned now, hereby ratifying and confirming said deed, and as the bequests therein alluded to, I hereby give and bequeath,” etc., using the language first above quoted. And he finished the paragraph with these words: “And direct that my executors convey to said trustees said land, if any such be owned by me at my death, andl deliver to them all the above mentioned property for the use of my beloved wife, Mary Georgiana, and her children, William Douglas, James White, and Anna Philida, during the natural life of my said beloved wife, and at her death to our children forever.” In the deed he had conveyed to the trustees named in the will a certain tract of land and other property, “To have and to hold in trust as follows, to wit: In trust for the use, support and maintenance of said beloved wife, Mary Georgiana, and children, William Douglas, James White, and Anna Philida, during the natural life of my said wife, remainder after her death in absolute right to my said children above named, and in the event my said wife should have any other child, or children by her present marriage, that such child or children born of my said wife by her present marriage, that it or they be made equal with my children above mentioned in said property, but in no event said property, or any part thereof, to go to any future husband, should my said beloved wife have such future husband, or to the children of such future husband, so as however not to restrain her of the use of said property during her natural life.” And, finishing the deed, he authorized the trustees “to demand and recover of my executors any legacy or bequest which I may give to my beloved wife and children above named in my last .will and testament and when received of my executors or administrators to be held by said trustees for my said wife in the same manner and under the same trust as above provided.” That expression of the will, upon which appellee relies as creating a fee in the wife either in the whole or in a part of the lands devised, cannot be segregated from the rest of the will without violating an elementary rule of all interpretation, and so, considering the will as a whole and having recourse to the deed for the solution of doubtful provisions, we have reached the conclusion stated above.

The deed of the widow, Mary Georgiana, under which complainant holds and claims by mesne conveyance, though it purported to convey the entire estate in fee with covenants of warranty, was effective as a conveyance of her interest as a tenant in common for her life only. — Colemcm v. Stewart, 170 Ala. 255, 53 South. 1020; Fielder v. Childs, 73 Ala. 567; McMichael v. Craig, 105 Ala. 382, 16 South. 883; Hall v. Condon, 164 Ala. 393, 51 South. 20. And that is now the extent and character of complainant’s title, unless, by lapse of time coupled with adverse claim, a larger interest has become vested in her.

So far as concerns the term for the life of Mary Georgiana Kidd, who still survives, we think it has been lost to defendants. There is nothing in the agreed facts to indicate an assertion of title hostile to respondents prior to the sale by the widow to Flippin in 1880. The agreement is that “Flippin under his deed from Mary Georgiana Kidd went into immediate possession and held said land for 10 years in actual, notorious, and exclusive possession, and during such time did not recognize or admit the title of the respondents or any other party, but, on tbe contrary, denied that any person whatsoever had any rights in and to said land; that Lula C. Borum has been in actual notorious, continuous, and exclusive possession of the land during the time since she went into possession more than 20 years prior to the filing of her bill, and that during said time she has not recognized or admitted any right, title, or interest of the respondents; that Robert L. Elippin and Lula C. Borum ¡have paid the taxes upon said land during the time aforementioned.” These facts show a possession by complainant and Plippin hostile in its inception and exclusive during its continuance, such as would set the statute of limitations to running as against strangers and would ripen into title after 10 years. Customary acts of ownership are sufficient to impute notice to all not claiming in privity with the possessor. But the rule is that the possession of a tenant in common, with- • out more, does not operate as a disseisin of cotenants, for in contemplation of law he holds for them. — Fielder v. Childs, 73 Ala. 567. To operate as a disseisin in such case there must be a repudiation of the rights of co-tenants and a claim of exclusive ownership brought home to their knowledge; that is, there must be positive information of the facts, however informally communicated or acquired. — Johns v. Johns, 93 Ala. 239, 9 South. 419; Ashford v. Ashford, 136 Ala. 631, 34 South. 10, 96 Am. St. Rep. 82; Palmer v. Sims, 176 Ala. 59, 57 South. 704; Lay v. Fuller, 178 Ala. 375, 59 South. 609. Knowledge or actual notice of the conveyance by one tenant in common to a stranger purporting to convey the entire estate and amounting therefore to a repudiation of the trust relation incident to cotenancy, and possession taken under it, would put the statute in motion. — Abercrombie v. Baldwin, 15 Ala. 363. But the burden of tracing such knowledge,, or actual notice home to her cotenants, and, in general, of proving that the title shown by her muniments, including the will, had been enlarged by an adverse holding or the doctrine of prescription rested upon complainant, and a reference to the agreed facts, in the light of the principles of law stated, will show that complainant has failed to sustain that burden. She has failed to bring home to defendants information of the adversary character of her possession.

But another contention, resting npon principles different from those obtaining in cases to which the statute of limitations applies, must be taken into account. For more than 30 years complainant and her immediate grantor have been in possession without any recognition of the rights of defendants. During that time, it is to be inferred, defendants have enjoyed no benefit of their ownership, and for more than 20 years they might have taken or claimed possession and upon denial of their rights might have maintained an action in their own name and behalf. This court has repeatedly held that the lapse of 20 years, without recognition of adversary right, or admission of liability, operates an absolute rule of repose. Many of the cases are cited in Jackson v. Elliott, 100 Ala. 669, 13 South. 690, where the question of the application of the doctrine of prescription to a case between tenants in common was put aside because not raised by the record in such form as to require consideration. A reading of these cases leads us to the conclusion that, as to the estate for the life of testator’s widow, defendants have been barred by a failure for more than 20 years to assert their rights. In the meantime complainant and her immediate predecessor in title have been in the uninterrupted and unquestioned possession of the land and in the like enjoyment of its undivided usufruct without the slightest recognition of the right now asserted by defendants. In such a case the court, for the repose of society, will presume any state of the title in order to maintain a status of parties and property so long allowed to remain undisturbed.

The estate in remainder must be disposed of on still different principles. As to that, defendants have never at any time been in a position to ask for any judgment or decree presently operative upon the possession of the property or the enjoyment of its usufruct. In such case laches cannot be predicated on the ground of mere delay because there, can be no delay where there is no right to move. In such case the remainderman cannot be barred pending the life estate by the statute of limitations, nor is there field for the operation of the doctrine of prescription. See the cases cited in Jackson v. Elliott, supra, and our recent case of Winters v. Powell, 180 Ala. 425, 61 South. 96.

It folloAvs that, as between the parties, complainant is entitled to an unincumbered estate in the entire property for and during the life of Mary Georgiana Kidd. As to. the remainder, upon the birth of John M. Kidd, he became entitled to share equally with William, James, and Anna Philida, each taking a fourth. On the death of Anna Philida in 1887, intestate, unmarried, and without children, her undivided fourth in the remainder devolved under the statute then in force on her three surviving brothers, who thereupon became the. OAvners of the entire interest in remainder in the proportion of an undivided one-third interest each. On the death of James W. in 1909 intestate, his third devolved upon his children Thos J., Meeda T., and James M., in the proportion of one-ninth each; and so the title stands at this time. In one particular the chancellor decreed differently; but a decree will be rendered here in accord with the views expressed.

Reversed and rendered.

Dowdell, C. J., and McClellan and Somerville, JJ., concur.