De Bardelaben v. Dickson

• Decision Date: 20 January 1910
• Citation: 166 Ala. 59,51 So. 986
• Parties: DE BARDELABEN v. DICKSON ET AL.
• Court: Alabama Supreme Court

51 So. 986

166 Ala. 59

DE BARDELABEN v. DICKSON ET AL.

Supreme Court of Alabama

January 20, 1910

Rehearing Denied Feb. 26, 1910.

Appeal from Circuit Court, Lowndes County; J. C. Richardson, Judge.

Action by P. H. De Bardelaben against J. T. Dickson and others. From a judgment for defendants, plaintiff appeals. Reversed and remanded.

Riddle Ellis & Kelly, for appellant.

Pettus Jeffries, Pettus & Fuller and D. G. Ewing, for appellees.

SIMPSON J.

This is an action of ejectment by the appellant against the appellees. The property in question was originally owned by P. H. De Bardelaben, Sr., who left a will in which occurred these words: "All of the balance of my property, real personal and mixed, I give and bequeath unto my beloved wife, Sophie E. De Bardelaben, during her natural life, and after her death to be divided equally between her heirs." At the time of the execution of the will, and of the death of P. H. De Bardelaben, Sr., there were living his said wife and his two sons, R. W. De Bardelaben and L. H. De Bardelaben, both of whom were married, but had no children. After the death of said P. H. De Bardelaben, his said wife and his said two sons executed a deed conveying the land in question to W. H. Merrit, and by successive conveyances the same came to the defendants. Subsequently both of said sons died; said L. H. leaving no children, and said R. W. leaving two children, who are the plaintiffs in this case and the only heirs of said P. H. De Bardelaben, Sr., and of said Sophie E. De Bardelaben, who did not remarry and died November 22, 1908. It will be seen that, under the wording of the will, as provided by section 2183 of the Code of 1876 (section 3403, Code 1907), Sophie E. De Bardelaben took a life estate, and the plaintiffs, who were her only heirs living at the time of her death, took the remainder as purchasers.

The contention of the appellee is that the word "heirs" should be read "children," intending to refer to her children and his then living, and thus creating in them a vested remainder, so that the conveyance by said widow and her two said children carried the entire title to the property. The general rule is that, where the testator uses technical words, he is presumed to employ them in a technical sense, unless a clear intention to use them in another is apparent from the context. 30 Am. & Eng. Encyc. of Law, p 671. It is true that the technical meaning of the word "heirs" must yield to the evident intent of the maker, where it is apparent that he intended to say children. But "this meaning cannot be assigned to the word, unless it very clearly appears that it was employed in that sense." 21 Cyc. 428. The court cannot infer, from any impression of its own, as to what would be natural to do; but there must be something in the context of the will to show that the testator did not understand the meaning of the word, or used it in a sense different from its correct meaning. Shimer v. Maun, 99 Ind. 190, 50 Am. Rep. 82, 84, et seq.; Machen v. Machen, 15 Ala. 373, 375-6; Ewing v. Standifer, 18 Ala. 400; Mason v. Pate, 34 Ala. 379, 391; Lloyd v. Rambo, 35 Ala. 709, 712; Parrish v. Parrish, 37 Ala....