Blakeney v. Du Bose

• Decision Date: 21 April 1910
• Citation: 167 Ala. 627,52 So. 746
• Parties: BLAKENEY v. DU BOSE.
• Court: Alabama Supreme Court

52 So. 746

167 Ala. 627

BLAKENEY v. DU BOSE.

Supreme Court of Alabama

April 21, 1910

Appeal from Circuit Court, Marengo County; John T. Lackland, Judge.

Ejectment by Jones L. Blakeney against S. B. Du Bose. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Abrahams & Taylor, for appellant.

William Cuninghame and Pettus, Jeffries & Pettus, for appellee.

MAYFIELD J.

This is an action of ejectment.

Plaintiff (appellant here) claims title as remainderman and devisee under the will of his grandfather, John Blakeney, who is indisputably shown to have been seised and possessed of the lands at the time of his death, viz., in 1862; his right of possession being thereby conditioned upon the deaths of three life tenants, his grandmother, Polly Blakeney, his father Robert Blakeney, and his stepmother, Nancy Blakeney, the last of whom to die was his father, who departed this life May 4 1908. Nancy Blakeney died before the testator. The defendant (appellee here) claimed title as a purchaser and by adverse possession for more than 10 years, but claims as a stranger to and not under or through the testator, John Blakeney, or his privies. The defendant or those through whom he claims had been in possession for more than 10 years before the bringing of the suit. The court gave the general affirmative charge for defendant, and plaintiff appeals, insisting that the general affirmative charge should have been given for him.

The only questions of law upon which the rights of the parties to this record depend are: First. Did this property pass under the will of John Blakeney? Second. Did plaintiff take under that will as a remainderman? Third. Was his right of possession postponed until the 4th day of May, 1908, so that the statute of limitations of 10 years does not bar his action? All of these may be reduced to one--Was defendant's possession, or that of those under whom he claims, adverse to plaintiff? This question can and must be answered alone upon a proper construction of the will of John Blakeney, who is conclusively shown to have been the owner at his death in 1862. This property was not specifically mentioned in the will as was other property, both real and personal, for the reason that the testator did not own this land at the making of the will; but subsequently he sold that devised, and purchased this, which he owned at his death. The property mentioned in the will, real and personal, was given one half to Polly, the wife of the testator and grandmother of plaintiff, for her life only, and the other half was given in trust during the lives and to the survivor of Robert and Nancy Blakeney, the only son, and daughter-in-law of the testator, said Robert being the father of plaintiff, and the remainder of the whole was devised to testator's grandchildren, the children of Robert, his only son or child. While the will is unusually lengthy, this, we think, is clearly the intent and meaning of the testator. Polly survived the testator, and died a few years after the War. Nancy, the daughter-in-law, died before the testator, and Robert married again. The plaintiff is a son of the second wife of Robert, and was born in 1866, four years after the death of the testator, but before the falling in or termination of either of the life estates. There were, however, grandchildren living at the death of the testator. The death of the survivor of the life tenants was the date which determined the grandchildren who should take under the will.

The will contained a residuary clause, which is as follows:

"The residue of my property (if any) is to be divided into equal parts, one half to go to my said wife and the other half to my said trustees to be held as a portion of the trust estate. If, however, the said residue or any portion thereof consists of money, the whole of it is to go to my wife."

The tenth and twelfth clauses of the will are as follows:

"10th. I hereby declare it to be my desire in bequeathing and devising the property in the foregoing items to protect my son and his wife and his children against any act of imprudence on his part and also and accident which may befall him hereafter."

"12th. After the termination of the life estate of my wife in the property before bequeathed & devise to her. It is my will and the trustee then to be appointed by my said son and his wife, is hereby directed to take possession of the same (Real and Personal) and to hold and use and employ the same as a portion of the trust estate created in item nine of this my will, and upon the death of my said son and his wife, the same is to be equally divided among the children of my said son--provided however any other child or children shall be born to my said son, I hereby direct, said trustee out of the negroes or their increase in this item mentioned (after the death of my wife and before the division among my grandchildren) to give and deliver to such child or children which may hereafter be born each a negro about equal in value to the average value to the negroes specifically given to my Grandchildren. So as to make the final division of my property among my Grandchildren as nearly equal as possible."

Wills speak only from the death of the testator, and must be construed as they would have been construed at the moment of death, and without regard to the consequences resulting from subsequent events, which were probably not foreseen or anticipated at the making of the will. Taylor v. Harwell, 65 Ala. 1. We therefore conclude that from the whole will it clearly appears that it was the testator's intention to give one-half of all his real property to his wife, Polly, for life only, to create a trust in the other half of his real estate for Robert H. Blakeney and his family, during the life of said son, provided said Robert survived his wife, Nancy, and for and during the life of Robert if his wife Nancy survived him; that, if said Nancy survived Robert, she was to have said one-half for the support of herself and children during her life; that, after the termination of these life estates in said real estate, all of the real estate should go to the children of Robert who were living at the death of the testator and at the death of said Robert, and any who had lived between the death of the testator and the death of Robert; that after the death of Robert H. Blakeney, and not until then, the property was to be divided equally between the testator's grandchildren, the children of Robert. Under the provisions of the will Polly and the trustee for Robert took life estates in all the testator's real property, with a vested remainder in the testator's grandchildren in esse at testator's death, in possession, only after the deaths of Polly and Robert, which remainder would open up to let in after-born children of Robert as they should or might come in esse. Gindrat v. Western Railway of Ala., 96 Ala. 162, 11 So. 372, 19 L. R. A. 839; Smaw v. Young, 109 Ala. 533, 20 So. 370; Watson v. Williamson, 129 Ala. 362, 30 So. 281; Findley v. Hill, 133 Ala. 229, 32 So. 497; Acree v. Dabney, 133 Ala. 437, 32 So. 127. Under the evidence in this case, the estate became vested in the youngest child of Robert in the year 1870. The will was executed in 1856, and is governed by the Code of 1852.

The interest of the plaintiff and of such children as were not in esse at testator's death was contingent, but under the law they took, while not in esse, by way of executory devise. Code 1852, § 1301. It therefore follows that life estates or interests in these particular lands were by the will of John Blakeney granted to his wife, his son, and his son's wife, during their lives, and to the survivor, with remainder to the children of Robert. All the life tenants being dead and the survivor having died less than a year before suit was brought by the remainderman, it follows that plaintiff was entitled to recover. We do not now attempt to decide the respective interest which the plaintiff or the other grandchildren or their descendants will take under this will, as that is not before us. It appears that there are other grandchildren who take as tenants in common with plaintiff; but as against this defendant, under the facts of this case, the plaintiff was entitled to recover the whole, and the...