Ashurst v. Ashurst

• Decision Date: 11 February 1913
• Parties: ASHURST et al. v. ASHURST.
• Court: Alabama Supreme Court

61 So. 942

181 Ala. 401

ASHURST et al. v. ASHURST.

Supreme Court of Alabama

February 11, 1913

Appeal from Chancery Court, Tallapoosa County; W.W. Whiteside Chancellor.

Bill by Gillie D. Ashurst against Harry G. Ashurst and others for removal of an estate from the probate to the chancery court to construe a will and for instructions to the executor. Decree for complainant, and respondents appeal. Affirmed.

See also, 57 South, 442.

The will of J.V. Ashurst, executed January 3, 1903, is as follows:

"Item 1. I am desirous of securing my children as far as possible in a decent subsistence, against the accidents and misfortunes of life, on which account, and because I think real estate will greatly enhance in value, I make this somewhat peculiar will, postponing a final division of my land for a considerable period."

"Item 3. I give to my son Harry G. Ashurst what is known as my home plantation, where, at the date of this will, I reside lying in Tallapoosa and Macon counties, and containing 1,490 acres; and to my son Wade Hill Ashurst, my Frank Ashurst place in the same counties, containing about 760 acres of land, lying on the east of my home place; and to my son R.L. Ashurst, my Burney place in Tallapoosa county, west of the homestead, containing about 800 acres; these three places shall go to and belong to said several donees, for their several lives respectively, and on their several deaths, within twenty-five years after my death, to their several children, if any living, until the expiration of twenty-five years after my death, and in the event of no children of the several donees, then to the survivors of the said three donees, then living, and on their death to their children until the end of twenty-five years after my death, except that if any such donees (my three said sons) become bankrupt or insolvent or execute any mortgage on said property so given to them severally or suffer any execution or any process for the payment of debt to attach to such share so given to such donee, under which said property shall be advertised for or exposed for sale, then in that event the estate of such donee shall thereupon cease and terminate absolutely, and at once vest in the children equally of such donee, and in default of living children at such date, to the other of said three donees, my children, then living, equally; and if the others of said donees be dead, then to their children equally per stirpes, during the life of such donee, whose estate is thus terminated and until the period for final division of my estate hereinafter provided for."

"Item 8. At the end of twenty-five years from my death, the lands embraced in the said three places devised to my said sons, Harry, Wade H. and R.L. are directed to be sold at public auction in lots or bodies likely to suit purchasers, for one-third cash, the balance at one and two years with interest, and deeds shall be made and mortgages taken back for credit portion of the purchase money, and after paying the expenses of the sale, the entire proceeds including cash and time notes shall be equally divided among my six children now living, if any child should be dead, his heirs, descendants or devisees shall take the share of such child as he or she may provide by will, and in case of no will, as the law provides in the case of intestacy; the purpose hereof being to vest in each of my children an interest of one-sixth of such estate directed to be sold subject to the previous life estates limited therein."

James W. Strother, of Dadeville, for appellants.

W.F. Thetford and Stuart Mackenzie, both of Montgomery, for appellee.

DE GRAFFENRIED, J.

The reporter will set out, in his statement of the facts of this case, items 1, 3, and 8 of the will, which, in this case, we are called upon to construe.

1. Section 1030 of the Code of 1896, which controls the provisions of this will, is as follows: "Lands may be conveyed to the wife and children or children only severally, successively and jointly; and to...