Castleberry v. Stringer

Citation176 Ala. 250,57 So. 849
PartiesCASTLEBERRY v. STRINGER.
Decision Date01 February 1912
CourtAlabama Supreme Court

Appeal from City Court of Talladega; Cecil Browne, Judge.

Suit by Fannie C. Stringer against E. C. Stringer and others to quiet title. From a judgment for complainant, W. B. Castleberry, as guardian for one of defendants, appeals. Affirmed.

The bill contains the usual statutory averments, making a copy of the will an exhibit, and setting out what complainant supposes to be the effects of the will. Olmsby Tilton is made a respondent, with the allegation that she is insane, and is the daughter of a sister of the testatrix. A guardian was appointed, who filed an answer, setting up that she was an heir of the testatrix and entitled to a one-third interest in the property. The will is as follows: (1) Payment of debts. "(2) I direct that my mother, Mrs. N. C. Carroll, is to have the entire use and control of all of my property during her life. (3) At the death of my mother, I want the Hubbard building on East street, now used by the B. & A. R. R. Co. as an office, to my brother James E. Carroll. The residue of my property, both real and personal, to go to the heirs of my sister Mrs. Fannie C. Stringer." Then follows appointment of her mother as executrix without bond.

It appears from the evidence that the testatrix died in 1898 that her mother, Mrs. Carroll, survived her, and died in 1905; that, before Mrs. Carroll's death, one of Mrs. F C. Stringer's children died; that, after Mrs Carroll's death, A. P. Stringer and E. Gipson Stringer the remaining children of Mrs. F. C. Stringer, made Mrs. Stringer a deed to all their interest in the property. It further appeared that, since the death of her mother, Mrs. Stringer and her children have been in the possession of the property, and have claimed the property, subject to the rights of Mrs. Carroll. Olmsby Tilton appears to have been the child of a deceased sister of the testatrix, Mrs. Savery.

W. B. Castleberry, for appellant.

Knox, Acker, Dixon & Sterne, for appellee.

ANDERSON J.

"The fundamental and cardinal rule in the interpretation of wills is that the intention of the testator, if not inconsistent with some established rule of law or with public policy, must control, and it is the duty of the courts to ascertain such intention and to give force and effect to the scheme that he had in mind for the disposition of his estate." 30 Am. & Eng. Ency. Law (2d Ed.) p. 661. "A cardinal principle in the construction of wills is to ascertain the intent of the testator, and give it effect if it is not prohibited by law." Smith v. Smith, 157 Ala. 79, 47 So. 220, 25 L. R. A. (N. S.) 1045.

"In endeavoring to construe a will so as to ascertain the intention of the testator, the courts will put themselves as far as possible in the position of the testator by taking in consideration his modes of thought and the circumstances surrounding him at the time of the execution of the will. Thus courts will consider the condition of his family and estate, the comparative amounts of realty and personalty, his affection for the legatees, his social relations," etc. 30 Am. & Eng. Ency. Law (2d Ed.) p. 666.

"When a will fairly construed is susceptible of two constructions, one of which would render it inoperative and the other give effect to it, the duty of the court is to adopt the latter construction." 30 Am. & Eng. Ency. Law (2d Ed.) p. 667. "If the language of the instrument is uncertain, or there is a latent ambiguity, evidence is admissible of the testator's feeling towards, and his relation to, the persons affected by the will, in order to interpret his intentions and to explain the doubtful words." 30 Am. & Eng. Ency. Law (2d Ed.) p. 679.

"The facts showing the person drawing the paper was unskilled will be considered in construing the will." Findley et al. v. Hill, 133 Ala. 229-233, 32 So. 497; May v. Richie, 65 Ala. 602. "Where the word 'heirs' is used in an instrument, and from the evidence showing the circumstances which attended the making of the will, and the fact that the will shows it was drawn by an unskilled person, and the necessary construction requires it, the word 'heirs' will be held to mean children." Findley v. Hill, 133 Ala. 229-233, 32 So. 497; Campbell v. Noble, 110 Ala. 382-394, 19 So. 28; May v. Richie, 65 Ala. 602; Twelves v. Nevill, 39 Ala. 175-180; Flanagan v. State Bank, 32 Ala. 508-511; Powell v. Glenn, 21 Ala. 458-466; Fellows v. Tann, 9 Ala. 999-1004; Kalbach v. Clarke, 133 Iowa, 215, 110 N.W. 599, 12 L. R. A. (N. S.) 801, 12 Ann. Cas. 647.

" 'Heir' is a legal term, and is used in a legal sense with a fixed legal meaning. The word has a technical signification, and, when unexplained and...

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31 cases
  • Tumlin v. Troy Bank & Trust Co., 4 Div. 538
    • United States
    • Alabama Supreme Court
    • 30 Junio 1950
    ...its own inquiry, in which testator's intention controls. Meglemry v. Meglemry, 222 Ala. 229, 131 So. 906. In Castleberry v. Stringer, 176 Ala. 250, 255, 57 So. 849, 850, it was said: "In endeavoring to construe a will so as to ascertain the intention of the testator, the courts will put the......
  • Reid v. Armistead
    • United States
    • Alabama Supreme Court
    • 21 Diciembre 1933
    ... ... Steele v. Crute et al., 208 Ala. 2, 93 So. 694; ... Myrick v. Williamson et al., 190 Ala. 485, 67 So ... 273; Castleberry v. Stringer, 176 Ala. 250, 255, 57 ... So. 849; Fowkles et al. v. Clay et al., 205 Ala ... 523, 88 So. 651; Achelis v. Musgrove et al., 212 ... ...
  • Russell v. Federal Land Bank
    • United States
    • Mississippi Supreme Court
    • 1 Noviembre 1937
    ...So. 149; Deason v. Stone, 52 So. 307; Wilson v. Alston, 25 So. 225; Smith v. Bachus, 70 So. 262; Findley v. Hill, 32 So. 497; Castleberry v. Stringer, 57 So. 849. word "heirs" has a fixed legal meaning, which must be given it when used in a will, unless controlled by the context, but it may......
  • Darrow v. Moore
    • United States
    • Mississippi Supreme Court
    • 16 Mayo 1932
    ... ... result would have done violence to the testator's ... manifest purpose ... Abrahams ... v. Abrahams, 122 So. 625; Castleberry v. Stringer, ... 176 Ala. 250, 50. 849; Rutland v. Emanuel, 202 Ala ... 269, 80 So. 107; Dickson v. Dickson, 178 Ala. 117, ... 59 So. 58; ... ...
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