Brugh v. White

• Decision Date: 27 June 1957
• Docket Number: 2 Div. 344
• Citation: 103 So.2d 800,267 Ala. 575
• Parties: Bessie Dandridge BRUGH et al. v. Olive W. WHITE et al.
• Court: Alabama Supreme Court

Page 800

103 So.2d 800

267 Ala. 575

Bessie Dandridge BRUGH et al. v. Olive W. WHITE et al.

2 Div. 344.

Supreme Court of Alabama.

June 27, 1957.

Rehearing Denied June 19, 1958.

Jones, McEachin & Ormond, Tuscaloosa, for appellants.

Jas. S. Coleman, Jr., Eutaw, and Ira D. Pruitt, Livingston, for appellees.

LIVINGSTON, Chief Justice.

On October 16, 1952, the City of Eutaw filed in the Probate Court of Greene County, Alabama, its petition of condemnation of certain real property situated in the City of Eutaw, in Greene County, Alabama, for the purpose of establishing a public park on said land.

On December 30, 1952, the Probate Court of Greene County entered a decree of condemnation of said real property and fixed the amount of damages and compensation for the owners of the said real estate at the sum of $4,000. Said cause was appealed to the Circuit Court of Greene County, and on April 11, 1953, the Circuit Court entered an order of condemnation of said real estate, fixing the amount of damages and compensation for the owners of the said real estate at the sum of $5,500 by which judgment the City of Eutaw acquired title to the real estate in question. After payment of court costs, the net balance due the former owners of the land so condemned was $5,457.50, this net fund being in the hands of the circuit clerk for distribution among the owners thereof, who were formerly the owners of the condemned land.

The land condemned by the City of Eutaw was formerly owned by Ella W. Cameron, deceased, who died in 1941 leaving a last will and testament by which she devised the real estate in question as follows:

'Item Three: I hereby give, bequeath, and devise the real estate owned by me in Sumter County, Alabama, known as the Huff Place, together with the Cameron pasture, a tract of land approximately five acres in area, situated in the Town of Eutaw, on Highway No. 11 to Bessie Dandridge Brugh, during the term of her natural life and after her death to her daughter, Cassie Bethany, for and during the term of her natural life and after her death to the residuary legatees named in item five of this will who are living at that time, in fee simple, share and share alike.

* * *

* * *

'Item Five: I direct that my Executrix and Executor, hereinafter named shall convert all of the rest and residue of my property, real, personal and mixed, of whatever kind and whereever situate, of which I may die seized and possessed, into cash, giving them full authority to sell said property at either public or private sale, whichever in their judgment will be the most profitable, and I hereby give, bequeath, and devise the proceeds of the sale from said property as follows: One-half to Olive W. White, Nell W. Fallaw, Cameron White and Fanelle Barnes, the other one-half to Sallie W. Martin, Fleta W. Morton, Lila McMahon, Winston McMahon, William O. McMahon, Donald McMahon, Virginia W. Barnes, Winston White, Olive White Baarcke, Addie White and Hubbard White.'

This will was duly probated on the 15th day of July, 1941.

The appellants, life tenants of the proceeds of condemnation of the real estate condemned by the City of Eutaw, filed a sworn application in the Circuit Court of Greene County, Alabama, which as last amended, offered to have the value of their interests considered and adjudged together and prayed that the value of both of their life estates be determined and paid to them as provided by Sec. 64(1) of Title 47, Cum. Pocket Part of the 1940 Code. The appellees' answer to the application, as last amended, denied that the appellants were entitled to have the value of their life interests in the fund ascertained and distributed as set forth in the appellants' application, and prayed that the appellants be granted only the use of the fund for life and thereafter that the entire fund be paid and distributed to the appellees who are living at that time. The appellants, separately and severally, demurred to the answer of the appellees.

On August 24, 1954, the cause and the appellants' application as last amended were argued and heard in the Circuit Court of Greene County, and on September 18, 1954, the court rendered its final decree and judgment in this matter. The court held that Sec. 64(1), Title 47, Cum. Pocket Part of the 1940 Code, which was approved on July 9, 1945, did not apply to the situation involved in this case; that said statute is unconstitutional in so far as it attempts to provide a method of distribution of the money involved in this proceeding; that the rights of the parties became fixed before the passage of said statute, and the passage of said statute did not change the status of any of the parties hereto in relation to the property involved herein; and that the surviving remaindermen mentioned in said will had a substantive or vested right in the condemnation award subject only to the right of the life tenants to the income thereof until the death of the last surviving life tenant. Thereupon the appellants appealed and assigned as error this ruling.

First, are the remainder interests created by the will of Ella W. Cameron, deceased, vested or contingent? The words creating the various interests are as follows:

'* * * to Bessie Dandridge Brugh, during the term of her natural life, and after her death to her daughter, Cassie Bethany, for and during the term of her natural life, and after her death to the residuary legatees named in item five of the will who are living at that time * * *.'

In Kumpe v. Coons, 63 Ala. 448, at page 452, there was a devise of lands to a married woman for life 'and after her death to her children then living,' Justice Brickell stated:

'The gift over to the then living children of Mrs. Barclay, on the termination of her estate for life, is a vested, as distinguished from a contingent remainder. 'It is,' says Ch. Kent, 'the present capacity of taking effect in possession, if the possession were to become vacant, and not the certainty that the possession will become vacant before the estate limited in remainder determines, that distinguishes a vested from a contingent remainder.' The death of Mrs. Barclay could happen, before the death of any of her children; and if it did, the gift in remainder would immediately vest in possession. 4 Kent, 232. * * *'

Kent's definition was again relied on in Gindrat v. Western Railway of Alabama, 96 Ala. 162, 11 So. 372, 19 L.R.A. 839, where the words creating the remainder interest were: 'said premises shall still be held in trust for her three children, to wit, Abraham Gindrat, Mary Elizabeth Winter, and William B. Gindrat, for and during the term of their natural lives, and at their death the same shall vest in the heirs at law or children of them, * * * that may be living at the time of their deaths.' Justice McClellan stated, 96 Ala. at page 170, 11 So. at page 375:

'If Abraham Gindrat had a child in esse on July 17, 1845, the remainder to his children at once vested in such child, and thereafter opened and let in after-born children, as they came into being. This, on the familiar principle that the uncertainty which prevents the vesting of a remainder must have reference to the present right of future enjoyment, and not to the enjoyment itself; or, in other words, if, when the final remainder was created, there was a person in esse entitled to take in possession immediately, upon the termination of the precedent life estate, the remainder became at once a vested estate in him, however great should be the uncertainty as to whether he would in fact ever come into the possession and enjoyment of the estate; * * *.'

In Smaw v. Young, 109 Ala. 528, 20 So. 370, the court, speaking through Justice McClellan, acknowledged that in Kumpe v. Coons, supra, and Gindrat v. Western Railway, supra, they had been misled by Chancellor Kent, in that the definition of a vested remainder relied on in those cases originated in the Revised Statutes of New York and was not a correct statement of the common law. It was stated, 109 Ala. at page 542, 20 So. at page 376:

'It is, therefore, submitted that, in order that a remainder may vest in interest, not only must it be capable of taking effect in possession at any moment the possession may become vacant, but there must also be some certain and determinate person in esse and ascertained, who answers the description of the remainderman at some time during the continuance of the particular estate, and not merely at its determination * * *.'

The majority of the court, though realizing that Kent's definition could not be sustained on principle, were unwilling to overrule the Kumpe and Gindrat cases on the ground that they had 'established a rule of property in the state which should not now be overturned.'

A legislative definition of vested and contingent remainders was incorporated in the Code of 1907, § 3401 (now Title 47, § 140, Code of 1940):

'Remainders are either vested or contingent. A vested remainder is one limited to a certain person at a certain time, or upon the happening of a necessary event. A contingent remainder is one limited to an uncertain person, or upon an event which may or may not happen.'

In Lyons v. Bradley, 168 Ala. 505, 53 So. 244, 247, Justice Sayre stated:

'In the Code of 1907 there appeared for the first time a legislative definition of vested and contingent remainders which established as the law of this state the views of McClellan, J., expressed in Smaw v. Young, supra; those views being in consonance with the learning of the common law on the subject * * *.'

For the proposition that the remainder interest of the appellees vested at the death of the testator, the appellees cite the cases of Thorington v. Thorington, 111 Ala. 237, 20 So. 407, 36 L.R.A. 385; Acree v. Dabney, 133 Ala. 437, 32 So. 127; Duncan v. De Yampert, 182 Ala. 528, 62 So. 673; and Braley v. Spragins, 221 Ala. 150, 128 So. 149. Thorington v. Thorington, supra, and Acree v. Dabney, supra, were decided...