O'Connell v. O'Connell

• Decision Date: 18 May 1916
• Docket Number: 3 Div. 244
• Citation: 196 Ala. 224,72 So. 81
• Parties: O'CONNELL v. O'CONNELL et al.
• Court: Alabama Supreme Court

72 So. 81

196 Ala. 224

O'CONNELL v. O'CONNELL et al.

3 Div. 244

Supreme Court of Alabama

May 18, 1916

Appeal from Chancery Court, Montgomery County; O.S. Lewis Chancellor.

Bill by G.A. O'Connell against Alice O'Connell and others to quiet title to land. From a decree rendered, complainant appeals, with cross-appeal by one of respondents. Reversed and rendered.

The will of Lucy O'Connell as to the items mentioned is as follows:

Item 2. The property in this will given, bequeathed or devised to each of my daughters shall be held as follows: The said personal property absolutely, and the real estate for and during the time of her natural life, and at her death to her children, share and share alike, but she may at any time sell or dispose of any or all of said property by and with the consent in writing of the acting executor or executors of my will, the proceeds of said sale to be paid to said executor or executors, and reinvested in such property as she may direct, to be held subject to the same limitations as the property sold, and the property so purchased may in like manner be sold, and the proceeds reinvested by the executors in other property, to be held under the same limitations, and all of the real estate or interest in real estate given to her under this will is to be held under and governed by the provisions of this item, save and except as here inafter or expressly provided.

7. I give, devise and bequeath to my son George A O'Connell the following described real and personal property situated in the city or county of Montgomery, to wit: Sixteen hundred and twenty-five dollars ($1,625.00) of the capital stock of the First National Bank of Montgomery the pin containing his grandfather's picture; two vacant lots numbers eleven and twelve on Godfrey street; two two-room houses on Oak street, numbers eight and nine; and the following described lot of land: Commencing at the corner of Water and Coosa streets, thence south along the west side of Coosa street one hundred (100) feet, thence west to an alley, thence north along said alley to Water street, thence east along the south side of Water street to the place of beginning, together with the use of said alley.

8. I give, devise, bequeath to my daughter Alice E O'Connell the following described real and personal property situated in the city or county of Montgomery, to wit: My watch and chain; my diamond ear rings; an undivided one-half interest in the lot which fifty (50) feet on the east side of Commerce street, between Tallapoosa and Water street, and extends back to an alley, together with the use of said alley, said undivided one-half interest to be given to her absolutely and not subject to the provisions of item 2 hereof; my two two-room houses on Oak street, numbers sixteen and seventeen; two vacant lots, numbers nine and ten, on Godfrey street; and the following described lot: Commencing on the west side of Coosa street, one hundred (100) feet south of Water street, thence south of Water street, thence south one hundred (100) feet, thence west to an alley, thence north along said alley one hundred (100) feet, thence east to the point of beginning, together with the use of said alley; also sixteen hundred and twenty-five dollars ($1,625.00) of the capital stock of the First National Bank of Montgomery.

16. If any child should die, leaving a child, or children, said child or children shall stand in the place of the parent, and if any of my children should die intestate and without descendants, the property devised or bequeathed to him or her under this will shall belong to the brothers and sisters, or their descendants, of such deceased child.

Hill, Hill, Whiting & Stern, of Montgomery, for appellant.

W.A. Jordan and J.F. Dillard, both of Montgomery, for appellees.

GARDNER J.

This bill was filed by the appellant, G.A. O'Connell, against the appellees, his children, and cross-complainant, Alice O'Connell, his sister, to quiet title to certain real estate devised to him by his mother, Lucy A. O'Connell. The sole question for determination on this appeal is the construction of the will of Lucy O'Connell in so far as the same affects the parties to this cause and the property involved. The report of the case will contain items 2, 7, 8, and 16 of the will.

It will be noted that the property devised to George A. O'Connell, appellant here, was without any limitation or restriction. This, without more, clearly vests in appellant a fee-simple title to the property. The court below, however, concluded that the provisions of item 16 limited the estate granted in item 7, and held that the complainant to the original bill owned only a life estate in the property devised to him. It is to be noted that in item 2, set out in the report of the case, it is provided that the real estate devised to the several daughters be limited to a life estate; but in item 8 of the will, containing the gift to the daughter Alice O'Connell, cross-complainant here, of an undivided one-half interest in a certain lot on the east side of Commerce street, in the city of Montgomery, the testatrix provided specifically that "said undivided one-half interest to be given to her absolutely and not subject to the provisions of item 2 hereof."

The said Alice O'Connell, being a party respondent to the original bill, filed a cross-bill seeking to have established her absolute...