Caldwell v. Caldwell

• Decision Date: 08 April 1920
• Docket Number: 8 Div. 216
• Citation: 204 Ala. 161,85 So. 493
• Parties: CALDWELL et al. v. CALDWELL et al.
• Court: Alabama Supreme Court

85 So. 493

204 Ala. 161

CALDWELL et al. v. CALDWELL et al.

8 Div. 216

Supreme Court of Alabama

April 8, 1920

Appeal from Circuit Court, Jackson County; W.W. Haralson, Judge.

Bill by E.H. Caldwell and another against D.K. Caldwell and others to require the executor to file his accounts and vouchers and for a reference to state an account upon a partial settlement of the estate of Almena Caldwell. From the order granting the relief prayed, the respondents appeal. Affirmed.

See also, 200 Ala. 570, 76 So. 928.

Lawrence E. Brown, of Scottsboro, for appellants.

Bouldin & Wimberly and John B. Tally, all of Scottsboro, for appellees.

THOMAS J.

The question at issue depends upon the construction of the will of S. Almena Caldwell, deceased, of date February 9, 1912. A will must be held to speak from testator's death, and whatever estate he then possessed must be held to pass according to its terms. Pearce v. Pearce, 74 So 952, 958; Dallas Compress Co. v. Smith, 190 Ala 423, 433, 67 So. 289; Blakeny v. Du Bose, 167 Ala. 627, 636, 637, 52 So. 746.

It was agreed at the trial that testatrix died on March 3, 1918; that at the time of her death her next of kin were her brothers E.H. and G.B. Caldwell, and the children of her brother David King Caldwell, who had theretofore died on November 17, 1914.

The pertinent provisions of the will are as follows:

"Second. I will to my brother, David King Caldwell, all of the personal property of every kind and description which I may own at the time of my death.

"Third. I will to my brother, David King Caldwell, all of the real estate of every kind and description which I may own at the time of my death during his lifetime, for him to use and control and have the profits therefrom as long as he lives, and at his death the said real estate to go to the sons and daughters of my said brother, David King Caldwell, share and share alike, their names being as follows: Frances K. Caldwell, David King Caldwell, Jr., Daisy Caldwell, Irene Caldwell, Eva Caldwell, Lala Caldwell, Dorothy Caldwell, Hamlin Alexander Caldwell, and Elbert Caldwell."

The will contained no alternative bequest of the personal property, no residuary clause as to the personal property. Was a case of lapsed legacy presented by the death of David King Caldwell, and because of no provision in the will for the disposition of the personal property in event of such death before that of testatrix? Code, § 6158; Woodroof v. Hundley, 147 Ala. 287, 39 So. 907; Johnson v. Holifield, 82 Ala. 123, 127-129, 2 So. 753; 40 Cyc. 1925, and many authorities.

The general rule of cases is that, unless a contrary intention appears, it is a presumption of law that a testator, by incorporating in his will a general residuary clause, evidences the intention not to die intestate as to any personal property, and it is presumed that he took the particular legacy from the residuary legatee only for the benefit of the particular legatee. The effect given such presumptions are, as to the prima facie intention of the testator, that--

"If a legacy of personal property lapses or proves ineffectual, the subject-matter thereof will inure to the benefit of the general residuary legatee if there is one, and not to the testator's next of kin or heirs at law." Authorities collected in 44 L.R.A. (N.S.) 790 et seq.

The distinction at common law between a devolution of lapsed legacies and devises is adverted to in Johnson v. Holifield supra, and our court remarked that no substantial reason existed for a distinction between the devolution of a lapsed devise of real estate and that of a lapsed bequest of personalty; that the rule had its origin in technical rules of law growing out of the different estimates of value as between personalty and real property, the application of which in many cases lost sight of the...