Blackwell v. Burketts

• Decision Date: 30 June 1948
• Docket Number: 4 Div. 493.
• Parties: BLACKWELL v. BURKETTS.
• Court: Alabama Supreme Court

36 So.2d 326

251 Ala. 233

BLACKWELL v. BURKETTS.

4 Div. 493.

Supreme Court of Alabama

June 30, 1948

Rehearing Denied July 31, 1948.

Murphy & Cook, of Andalusia, for appellant.

S. H. Gillis, of Andalusia, for appellee.

SIMPSON Justice.

This proceeding involves a construction of the will of Lillie Blackwell, deceased. Her husband, W. A. Blackwell, the appellant, claims a fee simple title to the property under the provisions of Items 2 and 3 of the will, whereas her sister, Mrs. Fae Burketts, claims a remainder interest in the property, contending that appellant was only devised a life estate by reason of§ 4 of the will.

The appeal is from a decree overruling the demurrer to appellee's cross bill. The pertinent ground of the demurrer which brings the question under review is: 'It affirmatively appears from the language of the will that whatever estate that complainant [Blackwell] had vested in him in fee simple and that the respondent has no estate or interest whatever.' (Record, p. 12.)

The remedy is not questioned so we will not, but treat the issue as presented by the parties. Both join in the effort to have the will construed. No collateral facts are alleged to shed light on the testator's intention and both parties assert rights dependent on the specific construction of the will. Henderson v. Troy Bank & Trust Co., Ala.Sup., 34 So.2d 835.

Appellant argues that he is entitled to a fee simple interest in both the real and personal property by reason of the provisions of Items 2 and 3, bequeathing him all of the testator's property, but concluding as follows: 'To have and to hold * * * unto the said W. A. Blackwell, his heirs and assigns absolutely and in fee simple forever; subject to the stipulations hereinafter set forth.' (Emphasis supplied.)

Item 4 the construction of which determines the appeal, and by reason of which, presumably, the trial court overruled the demurrer to the cross bill, thereby adjudicating appellant to have only a life interest in the testator's property stipulated:

'It is my will and desire and I hereby direct that in the event that my said husband, W. A. Blackwell and myself should die at the same time, that is simultaneously, or that the said W. A. Blackwell, should die after I shall die that all of my property heretofore devised and bequeathed to the said W. A. Blackwell herein above, both real estate and personal property, shall become the property of Mrs. Fae Burketts * * * and in the event that the said deaths of myself and the said W. A. Blackwell should happen as stipulated above, I do bequeath and devise all of my said property, real estate and personal property to the said Mrs. Fae Burketts, her heirs and assigns the said property in fee simple and absolutely forever.' (Emphasis supplied.)

It is contended by appellant that the portions of Item 4 above which we have italicized are so ambiguous that the bequest to Mrs. Burketts must be disregarded; that it does not with reasonable certainty indicate an intent of the testator to delimit the absolute estate allegedly made to him in the previous items.

True where an estate or interest is bequeathed in one clause of a will in clear and decisive terms, this bequest cannot be taken away or cut down by raising a doubt upon the extent and meaning of a subsequent clause, nor by inference therefrom, nor by any subsequent words that are not as clear and decisive as the words of the clause giving the interest or estate. Pearce v. Pearce, 199 Ala. 491, ...