Acree v. Dabney

• Decision Date: 13 May 1902
• Citation: 133 Ala. 437,32 So. 127
• Parties: ACREE ET AL. v. DABNEY.
• Court: Alabama Supreme Court

32 So. 127

133 Ala. 437

ACREE ET AL. v. DABNEY.

Supreme Court of Alabama

May 13, 1902

Appeal from city court of Montgomery; A. D. Sayre, Judge.

Action by Jane Acree and others against Jesse Dabney. From a judgment for defendant, plaintiffs appeal. Affirmed.

This was a statutory action of ejectment, brought by the appellants, as children of James and Samuel Oliver, against the defendant Jesse Dabney, to recover certain lands specifically described in the complaint. The cause was tried by the court without the intervention of a jury upon an agreed statement of facts, and the claims of the plaintiffs and the defendant, respectively, are shown in the opinion. Upon such facts the court rendered judgment in favor of the defendant, to the rendition of which judgment the plaintiffs duly excepted. The plaintiffs appeal, and assign as error the rendition of judgment for the defendant.

R. T Goodwyn and Jennings J. Pierce, for appellants.

Joseph Callaway and Hill & Hill, for appellee.

TYSON J.

This is an action of ejectment, brought by the children of James and Samuel Oliver to recover the tract of land described in the complaint. The father of James and Samuel, being the owner of this land, made a will, in which he devised it to his wife for life, and "after her death to be equally divided between my [his] children which may then be surviving." The testator left surviving him, in addition to James and Samuel, another son, John, and his wife, the life tenant Susan. Each of the sons and the life tenant executed warranty deeds of bargain and sale to the land to one Dillard, who went into possession, and afterwards sold it to the defendant. After the execution of these deeds, the sons died leaving surviving them the life tenant, who also died a short time before the institution of this suit.

Before entering upon a discussion of the nature or character of the remainder to the children, it may be well to dispel any doubt that may exist as to the intention of the testator to expressly devise to his three sons eo nomine the fee in the land sued for. To do this it is only necessary to call attention to the second item of the will, which reads as follows: "The other three-fourths of my negroes I do hereby devise and bequeath unto my three children, to wit Samuel C. Oliver, James McCarter Oliver, and Knox Ponder [John R.] Oliver, to be equally divided between them, share and share alike, to them and their heirs, forever, together with the foregoing bequest to their mother after her death." Under the principles declared in Thorington v. Hall, 111 Ala. 323, 21 So. 335, 56 Am. St. Rep. 54, Smaw v. Young,

109 Ala. 528, 20 So. 370, and Kumpe v. Coons, 63 Ala. 448, the wife took a life estate in the land, and each of the children of the testator the three sons, took a vested remainder, subject to be devested. In the cases of Thorington v. Hall and Smaw v. Young there was a divestiture of the share or shares of those of the remainder-men who died before the life tenant, since there was a surviving remainder man or men to take. In the case in hand there is no surviving child or remainder-man to take upon the termination of the life estate, since all of them died before the life tenant. The event or contingency upon which the estate already vested was to be devested did not happen. Where this is the case, the rule is that "an estate once vested will not be devested, unless all the events which are to precede the vesting of a substituted devise happen. Applying this rule of construction, in Harrison v. Foreman, 5 Ves. 207, where a fund was bequeathed to A. for life, and after her decease to P. and S. in equal moieties, and, in case of the death of either of them in the lifetime of A., then the whole to the survivor living at her decease. Both died in her lifetime; and Sir R. P. Arden, M. R., held that the original gift was not defeated. So, in Sturgess v. Pearson, 4 Madd. 411, it was held that a gift to a person for life, and after his death to his three children, or such of them as should be living at the time of his death, conferred a vested interest on the children, subject to be devested only in favor of those who should be living at the prescribed period; so that, if all the children died in the lifetime of the...