Bingham v. Sumner

• Decision Date: 12 May 1921
• Docket Number: 2 Div. 733
• Citation: 206 Ala. 266,89 So. 479
• Parties: BINGHAM v. SUMNER.
• Court: Alabama Supreme Court

89 So. 479

206 Ala. 266

BINGHAM v. SUMNER.

2 Div. 733

Supreme Court of Alabama

May 12, 1921

Rehearing Denied June 30, 1921

Appeal from Circuit Court, Greene County; R.I. Jones, Judge.

Bill by Martin T. Sumner against Rosemary Bingham, to settle and quiet title to land, and incidentally to construe a will. From a decree holding that respondent had no right, title, or interest in said land, respondent appeals. Reversed and rendered.

Thomas and Gardner, JJ., dissenting.

Edgar L. Clarkson, of Tuscaloosa, Henry Fitts, of Chicago, Edward De Graffenried, of Tuscaloosa, and R.B. Evins, of Greensboro for appellant.

Harwood McKinley, McQueen & Aldridge, of Tuscaloosa, A.C. & H.R Howze, Smith, Wilkinson & Smith, Stokely, Scrivner & Dominick, and William M. Spencer, Jr., all of Birmingham, and Steiner, Crum & Weil, of Montgomery, for appellee.

SAYRE, J.

This litigation involves the title to valuable lands in the county of Greene. Appellant, Rosemary Bingham, on the one hand, claims ownership in virtue of the statute of descents as heir at law of Ada Hairston Sumner, deceased; on the other, appellee, Martin T. Sumner, surviving husband of Ada Hairston Sumner and father of her children, deceased, claims by inheritance from said children. Ada Hairston Sumner left a last will and testament, and the question at issue more narrowly stated, is whether the children under the law of the will left an inheritable estate in the lands. The report of the case will show a copy of the will.

Nothing could be clearer than that a legal estate for life was by this will vested in the husband of testatrix. Title and possession were to be held in trust, and in the creation and disposition of the trust it is to be freely conceded that testatrix manifested her primary solicitude for the future of her children. But the trustee was given power to sell any or all of the property devised to him for the payment of debts or the settlement of claims against the estate, and to control, manage, or dispose of the property as he might see fit for the best interest of the estate, and it was the will of testatrix that in managing and controlling the property for the benefit of her children, "and in the expenditure of the rents and profits thereof for the purpose aforesaid," the trustee should use his own judgment and exercise his own discretion, and should not be held to account by the children for his acts and doings during his life. These provisions of the will may be construed fairly, and in full agreement with every purpose discoverable in the language used, as directing that during the life of the trustee the rents and profits to accrue from the management of the estate should be used primarily for the benefit of the children of testatrix, but not, it seems, as excluding the trustee, husband of testatrix, from participation in the benefit of such rents and profits. McLeod v. McDonnel, 6 Ala. 236. And, as to the corpus of the estate, the trustee is given power to dispose of any or all of it at discretion, and without being called to account therefor. It may be doubted that this did not confer, not merely a naked executorial trust, but a power coupled with an interest. Young v. Sheldon, 139 Ala. 444, 36 So. 27, 101 Am.St.Rep. 44. At any rate, the will contains no words importing a gift in praesenti to the children of the whole or any part of the corpus of the estate. The disposition of the corpus of the estate in trust for the life of the trustee contemplated that a part of it would be consumed in the execution of the trust, the gift over being found only in the language of subdivision 5 of item 1, where the provision was that at the death of the trustee all the property "then left" should be given to "children then living," share and share alike.

Rules of testamentary interpretation with a view to the discovery of intention can never transcend this limit; the intention so determined must be justified by the law and the language of the will. Rules favoring the early vesting of remainders and referring words of survivorship to the death of the testator can never be used to wrest language from its plain meaning, for, as respects these things, testators are free to do as they please with their property. Nor do we find a review of the cases to be of much service in the matter of mere interpretation, though many cases have been consulted in connection with this record. However, we notice briefly some which seem to be considered most nearly in point.

Stress is laid on Acree v. Dabney, 133 Ala. 437, 32 So. 127, and Smaw v. Young, 109 Ala. 528, 20 So. 370. In the first-named case, where it was held that remaindermen had cut off heirs at law by a conveyance executed prior to the falling in of the life estate, the court was astute to discover a present gift of the entire fee. And in Smaw v. Young, and the cases in that line, there was an application of this rule of law: The uncertainty which prevents the vesting of a remainder must have reference to the present right of future enjoyment. In the case at bar a trust intervened with a power in the trustee which he might exercise for his own benefit, or, at any rate, without accountability, and which might consume any part or even the whole of testatrix's estate.

In Foster v. Holland, 56 Ala. 474, the will was held to give a present interest in the entire fee, though its division was postponed, for the reason that to hold otherwise would be to declare a practical intestacy as to the corpus of testator's estate during the years of the infancy of the devisees. Here the creation of the estate for life in the trustee precludes the propriety of or necessity for any such interpretation. In Travis v. Morrison, 28 Ala. 494, where management, though no title, was vested ad interim in mere executors it was held that a bequest as follows: "In the event of" the marriage of any of the legatees, or the attainment of majority by any of the infants, it is made executor's duty to divide the property equally, and to assign and give to each one a child's part, "which," the testator added, "I give to them and their heirs forever"--and in another clause providing in the same event "property shall be then equally divided among them, giving each one, as before stated, a child's part of the same," there being no words of gift in praesenti, it was held to be the plain meaning that the legatees were to take upon the contingency specified, and in no other event. In Foster v. Holland, supra, the court thought the principles of Travis v. Morrison should not be extended, but it was not overruled. No extension is necessary in the present case.

Nor do we think Duncan v. De Yampert, 182 Ala. 528, 62 So. 673, helps appellee. In that case the remainder to a class equally, some of whom were living at testator's death, was held to be vested upon the happening of that event because nothing but the death of the remainderman before the determination of the particular estate could prevent such remainder from vesting in possession. That rule was also observed in Phinizy v. Foster, 90 Ala. 262, 7 So. 836. The intervention of the life estate with the power in the life tenant to dispose of the fee serves to differentiate this case from Duncan v. De Yampert. Johnson v. Terry, 139 Ala. 614, 36 So. 775, supports the contention that the will in this case was intended to vest in the children of testatrix (or their children) who should survive the life tenant only such part of her estate as might survive the life tenant's power of disposition, though the language of the will in that case did not point so conclusively to the result there reached, as does the language here; and so does Young v. Sheldon, supra. Other cases that have been referred to in argument are considered for one reason or another not to be in point.

The conclusion reached is the only one which would do no violence to the language of the will. Testatrix did not anticipate, nor did she make provision for, the contingency that has happened, i.e., the death of her children before her husband. The result is that her property, after the life estate given to her husband--whether by the will or by statute is immaterial just now--will descend to her blood,--a circumstance usually considered as of some significance in the construction of wills--to appellant. A decree accordingly will be here rendered.

Reversed and rendered.

McCLELLAN, SOMERVILLE, and MILLER, JJ., concur.

THOMAS and GARDNER, JJ., dissent.

ANDERSON, C.J., not participating in the consideration or decision of this case.

McCLELLAN J. (concurring).

While I concur in the result attained on this appeal, as well as in much that is written in the opinion of Justice SAYRE, I am unable to discover in the will of Mrs. Sumner the slightest remotest manifestation of a testamentary intent to create in or to devise to her husband, Martin T. Sumner, individually, a life estate in these lands. The only references in this will to Martin T. Sumner are to him as husband and trustee or as executor. The devise in item 1 of the will is to him "in trust nevertheless." Obviously a devise or bequest to one as trustee, "in trust," is not a devise or bequest to the individual named as trustee. The provisions of the will referring to the period "for and during his natural life," and other like phrases, were introduced to define the duration of the trust he was nominated as trustee to administer under the broadest discretionary powers, and so on the theory that her child or children would survive her husband, the trustee. Upon him, as trustee, was imposed the duty to serve the interests of the cestuis que trust, viz. the son Percy and any child later born. His exemption from accountability to the beneficiaries of the trust or to any one else for his...