Allen v. Maxwell

• Decision Date: 10 April 1947
• Docket Number: 3 Div. 452.
• Citation: 32 So.2d 699,249 Ala. 655
• Court: Alabama Supreme Court
• Parties: ALLEN et al. v. MAXWELL et al.

32 So.2d 699

249 Ala. 655

ALLEN et al. v. MAXWELL et al.

3 Div. 452.

Supreme Court of Alabama

April 10, 1947

Rehearing Denied Dec. 4, 1947.

Jos R. Bell, of Hayneville, and Martin, Turner & McWhorter and Walter Bouldin, all of Birmingham, for appellants.

D M. Powell and Powell & Hamilton, all of Greenville, for appellees.

The codicil made exhibit C to the agreed statement of facts is as follows:

'I, Marcellus J. Fagg of the City of Asheville in the County of Buncombe and State of North Carolina, having heretofore made and published may last will and testament bearing date the 21st day of February, 1882 and having thereafter made and published a codicil to the same dated December 3rd, 1885, and being now of sound mind and memory, do make this codicil to be taken as a part of my said last will and testament.

'First. I hereby ratify and confirm my said last will and testament in every respect excepting so far as any part of it is inconsistent with this codicil and I hereby revoke and in all respects annul said codicil heretofore made to be and be treated as if the same and every part of it had never been made.

'Second. I give and devised to my adopted daughter Bessie May Maxwell (born Fagg) for her natural life all that piece of land consisting of a house and lot with appurtenances in said City of Asheville on the north side of Patton Avenue and eastern side of French Broad Avenue bought by me from D. K. Collins and known as the 'Collins Place,' together with all and singular its tenements, hereditaments, privileges and appurtenances, for her sole and separate use and benefit, with remainder to such child or children or the issue of such as she may have surviving her and if she die leaving no such child or children or issue of such, then remainder to may daughter Minnie M. Fagg and if said Minnie M. Fagg shall then be dead remainder to such child or children or the issue of such as said Minnie M. Fagg may have left surviving her; and in event of the said Bessie May Maxwell dying leaving no child or children or issue of such and said Minnie M. Fagg being dead having left no

child or children or issue of such then remainder to my brother H. C. Fagg or if he be then dead to such child or children or issue of such as he shall have left him surviving, and in event of the death of Bessie May Maxwell leaving no child or issue of such, said Minnie M. Fagg and H. C. Fagg having both died leaving no child or children or issue of such then remainder to my heirs in fee simple.

'Third. I give and devise to my daughter Minnie M. Fagg all that piece of land, with its improvements, situate on the western side of Main Street in said City of Asheville and known as the 'Sluder Building' and all that piece of land, with its improvements, situate on the eastern side of Water Street in said City of Asheville and now occupied by W. O. Miller, both bought by me from E. Sluder, and all that piece of land in the County of Madison and State of North Carolina near Hot Springs adjoining lands of Gudger, lands formerly of Rumbough, and others, and known as the 'Lime Kiln Place' together with all and singular the tenements, hereditaments, privileges and appurtenances unto said three pieces of land respectively belonging for her natural life, to her sole and separate use and benefit, with remainder to such child or children or the issue of such as she may have surviving her, and if she die leaving no child or issue of such then remainder to my said adopted daughter, Bessie May Maxwell, or if said Bessie May Maxwell shall then be dead, to such child or children or issue of such as she shall have left surviving her; and in event of the death of said Minnie M. Fagg leaving no child or issue of such and said Bessie May Maxwell having then died leaving no child or issue of such, then remainder to my brother H. C. Fagg or if he be then dead, to such child or children or issue of such as he shall have left surviving him; and in event of the death of said Minnie M. Fagg leaving no child or issue of such and said Bessie May Maxwell and H. C. Fagg having theretofore died leaving no child or issue of such, then remainder to my heirs in fee simple.

'Fourth. All the residue of my estate not in said last will and testament or in this codicil specifically disposed of I give and devise to my executors to be by them, as soon as they think prudent and best, sold and converted into money and the proceeds to be invested by them in improving the 'Home Place' in Asheville aforesaid, one-third of said proceeds to be invested in permanent brick buildings on that part of said 'Home Place' devised to my adopted daughter Bessie May Fagg, now Bessie May Maxwell, and the other two thirds of said proceeds to be invested in permanent brick buildings on that part of said 'Home Place' devised to my daughter Minnie M. Fagg.

'In witness whereof, I, Marcellus J. Fagg, have to this codicil to my last will and testament subscribed my name and set my seal this February 11th, 1890.'

LIVINGSTON Justice.

This is an appeal from a declaratory judgment rendered by the Circuit Court, in Equity, of Lowndes County, Alabama, construing the will of Marcellus J. Fagg, a former resident of Asheville, North Carolina. The case was submitted in the court below on an agreed statement of facts.

The subject matter of the controversy is certain described real estate located in Lowndes County, consisting of approximately nine hundred and forty-nine acres of land, and known as the 'Miles Place.' Both appellants and appellees claim to own said lands by virtue of the provisions of the will of Marcellus J. Fagg. The pertinent provisions of the will are as follows:

'Item 3. I will and devise to my daughter Minnie the use and occupation rents and profits of my plantation in the County of Loundes and State of Alabama, known as the Miles place, which farm was conveyed to me by T. J. Middleton, Exr. of A. Miles to have and to hold to her during her natural life and at her death to such children as shall or may be born to her in lawful wedlock any deceased child to take the share its parents would have taken had they been living subject however to the devise to my beloved wife mentioned in Item 2nd of this will.

'Item 4. I give and devise to my my adopted daughter Bessie May Fagg my plantation in said County of Loundes and State of Alabama known as the 'Patton & Fagg place' being the land purchased by me from D. O. Stanfield and deeded to me by T. J. Middleton & wife. I give her the use and occupation rents and profits of said land during her natural life time; and at her death to such children as shall or may be born to her in lawful wedlock the issue of any deceased child to take the share its parents would have taken if living subject to the devise to my beloved wife mentioned in Item 2 of this will. It is my will and intention that Bessie shall take and hold the rents &c of this land precisely as Minnie is to take hers as mentioned in Item 3 of this will. * * *

'Item 9. In case that either Minnie or Bessie should die without child or children then I devise the property that would have gone to said child or children had such been born, to the child or children of the survivor of them, and in case both of them should die without issue then the same is devised to my brother H. C. Fagg and his heirs forever.'

The appellants claim through the daughter Minnie Fagg Malloy, referred to in the will, and her son, Fagg Malloy. The appellees claim through Bessie May Fagg Maxwell, the adopted daughter referred to in the will. More specifically, appellants contend that under item three of her father's will, Minnie Fagg Malloy acquired a life estate in the lands in controversy, and that the will vested in her son, Fagg Malloy, immediately upon testator's death the remainder in said lands, and that upon the death of Fagg Malloy without issue, before the death of his mother, his mother inherited his interest and devised it to appellants by will. Appellees contend that the estate created in Fagg Malloy, son of Minnie Fagg Malloy, was what is known as a base fee contingent upon his surviving his mother, and that because he died before his mother, the estate did not vest in him. Further, that the remainder created by item three of Marcellus J. Fagg's will was contingent; that it never vested in Fagg Malloy because he did not survive his mother, and that because of this she died without issue, and that upon her death, under item nine of the will hereinabove set out, the title to the lands referred to in item three of the will vested in appellees, the surviving children of Bessie May Fagg Maxwell, who was the adopted daughter of the testator, Marcellus J. Fagg, and his legatee named in item four of the will.

Marcellus J. Fagg executed his will quoted above on February 21, 1882. He executed a first codicil on December 3, 1885, and a second codicil revoking the first codicil on February 11, 1890. Copies of these instruments are respectively exhibits A, B, and C to the agreed statement of facts. The will and codicils were duly admitted to probate and recorded in both North Carolina and Lowndes County, Alabama.

At the time the original will was executed both Minnie Fagg daughter of the testator, and Bessie May Fagg, an adopted daughter of the testator, were unmarried. Before the testator died in February 1894, Minnie Fagg had married T. F. Malloy in 1892 and a son Fagg Malloy had been born to them in October 1893, Bessie May Fagg had married Wallace Maxwell in 1889 and before the death of the testator Lois Maxwell had been born to them on December 23, 1890. Another daughter, Marcella Maxwell, was born to them on August 13, 1894. Three other children born to the Maxwells died unmarried without issue. Lois Maxwell and ...