Allen v. Maxwell

Upon consideration of this cause I am persuaded that the decree of the lower court should have been affirmed. The question to be determined relates to the proper construction of the will here under review, a matter not free from difficulty. I am persuaded, however, that our original construction was at variance with the testator's intent. While a will is effective and speaks as of the date of the death of the testator, it is to be construed in the light of the facts existing when it was drawn and which were known to the testator. Kimbrough v. Dickinson, 247 Ala. 324, 24 So. 2d 424. When the will was drawn the two daughters, Minnie and Bessie, were unmarried. The testator could not, of course, know whether either of them would marry, nor could he know whether or not either of them if married would have child or children.

We are now dealing with item 3 of the will. The testator was looking into the future years as to his daughter Minnie, and in item 3 devises to Minnie the land in Lowndes county for her natural life, adding "and at her death such children as shall or may be born to her in lawful wedlock." He further looked to the issue of any such children of Minnie who would take its parent's share, had such parent been living. But not knowing, of course, whether or not Minnie would marry, or if she married whether or not she would bear children, the testator provided in item 9 that in case either Minnie or Bessie should die without child or children then the property would go to the child or children of the survivor of them. But he looked still further and met the contingency that both of them should die without issue and provided in such event that the property should go to his brother, H. C. Fagg.

With the general principles of law stated in the opinion I am in accord. It is in the application to the instant case with which I find myself in disagreement. Rules of construction, of course, are valuable aids to the court in arriving at the intention of the testator, but they should not be exalted to rules of positive law, but must yield to the master rule that the intention of the testator gathered from the four corners of the instrument and in the light of the surrounding facts and circumstances must control. I am of the opinion that some of our authorities illustrate the correctness of the construction given by the decree of the lower court. One of these authorities is that of Phinizy v. Foster, 90 Ala. 262,7 So. 836. This case is sought to be distinguished from the instant case upon the theory that in the Foster case the words: "living at his death" are found in the will and omitted here. But as I view it, that difference does not suffice to render the Foster case inapplicable.

Construing item 3 of the will in connection with item 9, I think it clear enough that the testator intended when he gave to his daughter Minnie a life estate and used the words "and at her death to such children as shall or may be born to her," he meant such children living at her death. Such is the only reasonable construction of this language. At the time the testator died Minnie had one son, three months old; the lived to be twenty-five years of age and died; Minnie had no other children. The son never married, and, of course, had no children. There were no children of Minnie living at her death, nor issue of any child. I am persuaded that this very contingency was provided for in item 9 where the testator expressly stated that if Minnie should die without children then the property should go to the child of the survivor. In the Foster case, supra, is much discussion of vested and contingent remainder, where it is observed:

"It is an established principle that estates are regarded as contingent when the event upon which they take effect may or may not happen. * * * When the payment of a legacy is dependent upon an uncertain future event, which may or may not occur, it lapses if the legatee dies before the happening of the event. There must be some person in esse capable of taking when the contingency on which the right depends occurs."

As we previously observed the testator could not know whether Minnie would marry and, if so, whether or not she would bear children. I am persuaded that the language of the will indicated that the principle of the Foster case is here applicable.

As I view it, there is still a later authority by this court which is perhaps more directly in point, and should be decisive of this appeal — that of Reynolds v. Reynolds, 208 Ala. 674,95 So. 180, 181. There the testator devised to his wife a life estate and upon her death made provision that the property should be equally divided between his five children, who were named, with the further provision that "should any of the above-named children die childless, then in that event, his or her share in my estate shall be divided among those living of the above-named children." The will did not state whether or not if these children should die childless before the falling-in of the life estate or before the division of the real estate, "then in that event, his or her share in my estate shall be divided among those living of the above-named children." All of the children were living at his death. One of the children died childless after the death of the testator, devising all his property to his wife. The wife died intestate without children, leaving surviving as next of kin her mother, Mrs. Amelia Harris, and a brother, William T. Harris. The holding was that the mother, Amelia Harris, and the brother, William T. Harris, had no interest in the property. The majority ruling was to the effect that under this will "Elizabeth A. Reynolds had a life interest during her natural life in all of the real estate, and the reversionary interest in this real estate vested, one-fifth in each, in the five children mentioned and remembered in section 3 of the will, subject to be divested out of any one of them by his or her death, without children, prior to the falling in of the life estate — that is, prior to the death of Mrs. Elizabeth A. Reynolds; and the survivors at her death take the whole interest in the land, a fee-simple title to it." In support of this conclusion the court cited Burleson v. Mays, 189 Ala. 107,66 So. 36, 40, wherein is found the general rule on the question of survivorship as follows: "If there is no previous interest given, the period of division is the death of the testator and survivors at his death take the whole, but if a previous life estate be given, then the period of division is the death of the life tenant and survivors at such death take the whole." And in the case of Reynolds v. Love, 191 Ala. 218,68 So. 27, noted in the majority opinion are expressions which also sustain this view. The cases noted in the majority opinion have been examined, but we think they differ both in language of the will as well as in facts and surrounding circumstances, and in no manner conflict with the authorities herein noted and with the view which I have indicated; and I might add, by way of emphasis, that in none of these cases is the language similar to that in item 9 of this will.

Reduced to the last analysis, I am of the opinion that the fundamental error of the majority view is a misapplication of the rule as to survivorship. As pointed out in 33 Am.Jur. 577 the rule relied upon by the majority is confined to those cases in which there is no period to which survivorship can be referred, and that where such gift is preceded by a life or other prior interest, it takes effect in favor of those who survive the period of distribution or the termination of the precedent estate, and in favor of those only. As observed from the above noted authorities this is no rule in this state. It was definitely recognized and given application in Smith v. Smith, 157 Ala. 79, 47 So. 220, 25 L.R.A., N.S., 1045. It was there observed the rule is that survivorship between devisees never relates to the death of the testator, unless there is no other time to which it can be referred, and that it naturally relates to the time of the death on which a previous estate terminates and on which the new estate is limited. This authority was cited approvingly with quotation of extracts from the opinion in the latter case of Baker v. Baker, 182 Ala. 194,62 So. 284. See also McGlathery v. Meeks, 219 Ala. 89,121 So. 67.

Of course this rule is not one of substantive law but one adopted by the court as a means of ascertaining the intention of the testator as expressed in the will. But the annotator of the notes in 114 A.L.R. 4, et seq. places Alabama among those states (see page 54) following this rule. And in Burleson v. Mays, 189 Ala. 107, 66 So. 36, the opinion quotes approvingly from Smith v. Smith, supra, and refers to the history of the change in regard to this rule, as now noted in 33 Am.Jur., supra, the quotation in the opinion of the Burleson case, supra, being from 29 Am. Eng. Ency. of Law, First Edition,

As we read our cases, therefore, it is the proper rule of construction of a will that if there is no previous interest given the period of division is the death of the testator and survivors at his death take the whole, but if a previous life estate be given then the period of division is the death of the life tenant and survivors at such death take the whole. Applying, therefore, this rule of construction, I think it clear enough that the trial court reached the correct conclusion.

There is much reliance, as we have observed, upon the case of Duncan v. De Yampert, 182 Ala. 528, 62 So. 673, but there was in that case no such clause as item 9 of the will here under review, and, furthermore, there was no such uncertain contingency confronting the testator as in this case. In the De Yampert case, supra, the testator definitely knew the objects of his bounty, he knew the life tenants and also knew the remaindermen to whom he devised the property because they were all in life when he executed his will and also at the time of his death. We repeat that at the time of the execution of this will the testator knew only his two daughters, then unmarried, and his brother who under item 9 of the will was a remote contingent remainderman. If upon his birth the son of Minnie could be held to have a vested remainder, it was under authority of Smith v. Smith, supra, and other cases following, subject to divestiture by death before his mother. The son died many years before the mother and, therefore, in my opinion the daughter Minnie died without child, a contingency which the testator had foreseen might occur.

If the De Yampert case is thought to recognize and apply a different rule of construction than that of Smith v. Smith, supra, and the other cases herein noted, I would not hesitate to express my disapproval. I think, however, there are points of differentiation, as indicated. And I am further of the opinion that in subsequent decisions citing the De Yampert case it will be found that after all the conclusion rested upon the clear intention of the testator, irrespective of a rule of construction. Illustrative is McCurdy v. Garrett, 246 Ala. 128,19 So. 2d 449, cited by the majority. It may be conceded the distinction as to these two rules of construction has not always been made clear, (see discussion in White v. Fowler,245 Ala. 209, 16 So. 2d 399) and expressions found in the cases are confusing. But I am persuaded the rule in the Smith and Burleson cases is the correct one and in line with modern thought. We should here and now declare the rule of construction as stated in these cases the correct rule to be followed.

Of course, it is clear enough that the result reached in the majority view is directly opposed to the will of the testator, or rather I should say, to his expressed wishes as found in the will, as it gives to the daughter Minnie a fee simple title (inheriting from her deceased son) when he had expressly willed her only a life estate. I recognize that subsequently occurring events not contemplated by the testator at the time he made his will and facts not known to the testator at that time are considered immaterial. 69 C.J. 66. We gave expression to this thought in Betts v. Renfro, 226 Ala. 635, 148 So. 406. Nevertheless, in cases of this character the will should be given a liberal construction so as to avoid, if possible, results contrary to the testator's intent, 69 C.J. 58, and every legimate conclusion indulged in to reach an equitable result, 69 C.J. 51. The thought I have in mind is well expressed by Judge Learned Hand (the senior judge of the Second Circuit, and considered one of our ablest jurists) in Central Hanover Bank Trust Co. v. Commissioner of Internal Revenue,159 F.2d 167, 169, where was used the following language: "There is no more likely way to misapprehend the meaning of language — be it in a constitution, a statute, a will or a contract — than to read the words literally, forgetting the object which the document as a whole is meant to secure. Nor is a court ever less likely to do its duty than when, with an obsequious show of submission, it disregards the overriding purpose because the particular occasion which has arisen, was not foreseen." These observations are directly applicable here, for if we keep in mind the overriding purpose of the testator but one result can follow, that is, agreement with the conclusion reached in the court below. But in my opinion in the instant case we have but to apply the rule as recognized in Smith v. Smith, supra, and reiterated in Burleson v. Mays, supra. So applying, I am persuaded we are carrying out the expressed will of the testator. It is clear enough to my mind that the date of the falling in of the particular estate, that is, the time of Minnie's death, determined who should take, and that the words "at her death" meant those living at her death. The testator had made provision for any issue of a deceased child, and as a consequence, therefore, in the absence of any such issue of a deceased child, the testator could only have intended to provide for a child of Minnie living at her death.

Nor can I agree that the codicil to the will which is Exhibit "C" referred to in the majority opinion tends in any manner to a contrary conclusion. In some instances testator uses the word "surviving" and other instances the same language as here involved in items 3 and 9. Indeed, as I view it, a reading of Exhibit "C" indicates a common purpose as to the disposition of testator's property — a life estate with remainder to children if surviving, or to issue of any deceased child surviving the parent. Minnie died without child, a contingency which he had foreseen might occur, as expressly demonstrated in item 9 of the will, in which event he provided that it should go to the children of the surviving daughter. Such was the conclusion of the court below, with which I am in accord.

I, therefore, respectfully dissent.

Justice BROWN concurs in the foregoing view.