Crawford v. Carlisle

• Court: Supreme Court of Alabama
• Citation: 206 Ala. 379,89 So. 565
• Docket Number: 4 Div. 878
• Parties: CRAWFORD et al. v. CARLISLE.
• Decision Date: 30 June 1921

89 So. 565

206 Ala. 379

CRAWFORD et al. v. CARLISLE.

4 Div. 878

Supreme Court of Alabama

June 30, 1921

Rehearing Denied July 15, 1921

Appeal from Circuit Court, Houston County; H.A. Pearce, Judge.

Bill by Dorothy Carlisle, by next friend, against J.L. Crawford and R.D. Crawford, as executor, and others, to remove and administer the estate in the chancery court, to construe a will, and for other purposes. From the decree rendered, the respondents appeal. Affirmed.

McClellan J., dissenting in part.

Whenever there is a devisee in being capable of taking the remainder at the termination of the life estate, the remainder is vested in interest, although it must wait the termination of the life estate before it can vest in possession or enjoyment.

The following is the will, leaving out preliminary matters:

"Item 2. I hereby appoint and make my two sons, J.L Crawford and R.D. Crawford, my executors to carry out all the conditions, terms and stipulations of this my last will and testament and to do and perform all the duties enjoined upon them expressly or impliedly under the terms, conditions and stipulations of this my last will and testament; and my said executors, the said J.L. Crawford and the said R.D. Crawford and each of them are hereby released from making any bond to carry out and perform the faithful discharge of their duties as executors under this my last will and testament; and when my said executors have probated this my last will and testament and had the same properly proved and recorded in the proper form, they shall not be held or required to make an annual or final settlement of their executorship or of their management and conduct of my said estate with any court.

"Item 3. It is my desire and I hereby direct, bequeath and advise, in case I should die before the death of my wife Mrs. Mary A. Crawford, that my said executors shall from time to time and as long as she lives, set aside out of my estate or the profit or incomes arising therefrom, a sufficient amount to suitably and properly maintain and care for my said wife, Mary E. Crawford, for her comfortable support and maintenance; and the said amount to be so set aside for my said wife until she dies, out of my said estate or the profits and incomes of same, shall be determined by my said executors, they having due regard for the position and station in life that my said wife occupies.

"Item 4. After the bequest or provision for my said wife as set out in the preceding paragraph of this my last will and testament has been properly provided for and met by my said executors, I desire, direct, bequeath and devise that my said executors shall annually ascertain and state the profits remaining after the provisions for my said wife has been met shall be equally divided, share and share alike among my surviving children, to wit, J.L. Crawford, R.D. Crawford Elma Creel, and Ethel Wilson, but this division of profits and incomes does not refer to or affect the corpus of my estate, but only relates to such profits and incomes as may annually accrue to and grow out of my said estate, the corpus of my said estate remaining intact at all times and shall not be reduced or impaired.

"Item 5. I desire and direct that the corpus of my estate in its entirety as I shall leave the same at my decease shall remain intact without reduction or impairment, until the end of the year one thousand nine hundred and twenty-eight. My said four children, J.L. Crawford, R.D. Crawford, Elma Creel, and Ethel Wilson, shall enjoy, take, receive and have in equal parts share and share alike, all the incomes and profits accruing to and growing out of the corpus of my said estate; and the management, control and direction of the affairs of the corpus of my said estate shall be held and directed by my said executors, J.L. Crawford and R.D. Crawford, as in their judgment and sound discretion may be for the best interest of my said estate, my said executors at all times handling my said estate and directing its affairs for the benefit of my four surviving children until the end of said year one thousand nine hundred and twenty-eight, so far as the incomes and profits accruing to and growing out of same is concerned.

"Item 6. It is my desire and I direct that at the end of the said year one thousand nine hundred and twenty-eight the personal rights, titles and interest of my said four children, J.L. Crawford, R.D. Crawford, Elma Creel, and Ethel Wilson, shall cease and be determined and end in the corpus of my said estate, as I shall leave it at the time of my decease, and in the profits and incomes accruing thereto and growing out of same, and at the end of said year one thousand nine hundred and twenty-eight my said executors. J.L. Crawford and R.D. Crawford, shall continue to handle, control and direct the affairs of my said estate as my said executors herein created and the profits and incomes accruing and growing out of the corpus of my said estate shall be equally divided or distributed share and share alike to my grandchildren then in being per capita and not per stirpes, until the end of the year one thousand nine hundred and thirty-eight, provided, however, that Dorothy Carlisle shall not participate in such distribution and shall in no event receive any portion of my said estate as to corpus or the profits thereof, it being hereby stipulated and directed that the said Dorothy Carlisle, my grandchild, is hereby disinherited by me, in this, my last will and testament, and she shall not receive any part of my estate, either as to corpus or as to the profits accruing to or growing out of the same, it being hereby desired, directed, bequeathed and devised by me, in this my last will and testament, that my entire estate, both as to corpus and to profits and incomes accruing thereto and growing out of same, as herein set out, shall become the property of my said surviving children and my grandchildren to the exclusion of and without right, title or interest in the said Dorothy Carlisle.

"Item 7. It is my desire and will that, at all times and under all circumstances, my said estate as to its corpus shall remain intact without reduction and without impairment, until the end of the year one thousand nine hundred and thirty-eight, and at the end of each and every year after the year

one thousand nine hundred and twenty-eight, and until the end of the year one thousand nine hundred and thirty-eight, my executors shall cast up and ascertain the amount of profits and incomes accruing to and growing out of the corpus of my estate, and the said profits and incomes at the end of each year after the year one thousand nine hundred and twenty-eight and until the end of the year one thousand nine hundred and thirty-eight shall be equally divided, share and share alike, among my grandchildren then in being, except Dorothy Carlisle, who shall not participate in, or take any part, of my said estate either as to its corpus, profits or incomes.

"Item 8. When all of the foregoing conditions, stipulations and provisions of this my last will and testament have been carried out, provided for and met, and at the end of the said year one thousand nine hundred and thirty-eight, it is my desire and I hereby grant, give, bequeath and devise all my property of every kind and description including my real, personal and mixed property then belonging to my said estate to my grandchildren then in being, except the said Dorothy Carlisle, share and share alike, and the said distribution and division of my said estate to my said grandchildren shall be per capita and not per stirpes, the term 'per capita' meaning herein that each of my grandchildren, except Dorothy Carlisle, shall take and receive of my estate an equal amount to each of the others of my grandchildren, except Dorothy Carlisle.

"Item 10. When all the foregoing terms, conditions and stipulations in this my last will and testament have been complied with, provided for and met by my said executors, and at the end of the year one thousand nine hundred and thirty-eight, it is my desire and I direct that my said executors shall then and there become, and they are hereby created trustees for my said grandchildren, except the said Dorothy Carlisle, and of my said estate; and as such trustees, they shall invest my said estate for my said grandchildren, except Dorothy Carlisle, into such investments and property as may, in their judgment and sound discretion, be proper and right to conserve and carry out the interests of my said grandchildren, except Dorothy Carlisle, and the said trustees shall make said investment in their own way, and as they may see proper so as to conserve the interests of my said estate and of my said grandchildren, except Dorothy Carlisle, in the same, to such an end that all my grandchildren, except Dorothy Carlisle, shall share equally in said investments, and to the end that each of my said grandchildren, except Dorothy Carlisle, shall take title in fee simple to equal shares of my said estate.

"Item 11. It is my desire and I hereby direct that in case the said J.L. Crawford or R.D. Crawford shall die, resign, or become incapacitated to perform the duties of executor under this instrument before the entire provisions, conditions, terms and stipulations have been carried out and met, then the surviving or remaining executor shall appoint of his own order and without any court proceeding an associate or coexecutor, who shall act jointly with such surviving or remaining executor and carry out and perform all the duties herein imposed on my executors. In witness whereof I hereunto set my hand and seal, and publish and declare this to be my last will and testament on this the 27th day of September, 1917.

"J.R. Crawford. [ L.S.]

"Signed, sealed,

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