Crawford v. Engram

• Decision Date: 19 December 1907
• Citation: Crawford v. Engram, 153 Ala. 420, 45 So. 584 (Ala. 1907)
• Parties: CRAWFORD v. ENGRAM ET AL.
• Court: Alabama Supreme Court

45 So. 584

153 Ala. 420

CRAWFORD v. ENGRAM ET AL.

Supreme Court of Alabama

December 19, 1907

Appeal from Chancery Court, Barbour County; W. L. Parks, Chancellor.

Bill by Annie O. Engram, executor of the will of Major L. Ramser, and others, against Anna V. Crawford, administrator. Decree for complainants, and respondent appeals. Affirmed.

C. S McDowell and Peach, Thomas & Peach, for appellant.

G. L Comer, for appellees.

HARALSON J.

The first item in the will of Jacob Ramser provides: "It is my will and desire, and I give and bequeath to my beloved wife, during her natural life, the homestead on which I reside, and all the land attached thereto, supposed to be about three acres, also all the household and kitchen furniture in use in my family. It is my further will and desire, that at the time of the death of my said wife, Mary Ramser, said homestead and said household and kitchen furniture shall be sold by my executors hereinafter named and the proceeds of said sale divided equally between such of my children, as I have made no special provision for, in this my last will and testament, share and share alike."

After making special bequests to all of his children but three, he provides in the eighth item, that his executors sell all the residue of his property, in the manner prescribed therein and then adds, "And the proceeds thereof shall be divided equally between my three remaining children for whom I have made no special provision in this my last will and testament, to-wit, Mrs. Mary Bowers, wife of Thomas Bowers, Mrs. Frances R. Tripp, wife of T. H. Tripp, and Major L. Ramser, share and share alike."

It is thus by this item made certain, if it were not certain before, to which of his children he referred, in item 1 of his will, in using the expression, that the proceeds of the property mentioned "shall be divided equally, between such of my children, as I have made no special provision for, in this my last will and testament, share and share alike." Without item 8 of the will, the children referred to, in this last clause of item 1, might have been made certain, but in item 8 he declares who they are.

The complainant's contention is, that under the will of said Jacob Ramser, deceased, her former husband, Major L. Ramser, had and held a vested remainder in his portion of the estate of his father, and that as his sole legatee, she inherited and took the vested remainder of her said former husband. By his last will, said Major L. Ramser gave her absolutely and without limitation the property he was entitled to under the will of his father, so that, if he had a vested remainder under item 1 of the will of his father, his wife, the complainant, was entitled to it under his will.

The contention of the defendant is, that the interest of Major L. Ramser, under the will of his father, was a contingent legacy, but if vested, it was divested by the death of the testator prior to the death of the life tenant, Mary Ramser, the wife of said Jacob Ramser.

We need not consider the last proposition, for if the estate of Major L. Ramser, under the will of his father, vested in him, at the death of his father, then the death of the life tenant could not divest it, without provision to that effect in the will of his father, and there was no such provision in his will. The only question, therefore, we have to consider is, whether the legacy of said Major L. Ramser, under item 1 of the will of his father, was a vested or contingent remainder.

The chancellor held that the legacy was vested, and complainant was entitled to it under the will of her husband. He rested his opinion, as to both questions mentioned, on the case to which he refers. He said: "It seems to me, that the case of Smaw v. Young, 109 Ala. 526, 20 So. 370, settles both of these points after a very full consideration. Upon the happening of the contingency, by which the precedent estate fell in, it is provided in the will construed in...