Darrow v. City of Florence

Decision Date20 October 1921
Docket Number8 Div. 359.
PartiesDARROW v. CITY OF FLORENCE ET AL.
CourtAlabama Supreme Court

Rehearing Denied Nov. 24, 1921.

Appeal from Circuit Court, Lauderdale County; Chas. P. Almon, Judge.

Suit by the City of Florence against Mrs. G. M. Darrow and others to foreclose an improvement lien and distribute the proceeds after payment, among the owners. From the decree rendered Mrs. Darrow appeals. Reversed and remanded.

Thomas Sayre, and Gardner, JJ., dissenting.

Mitchell & Hughston, of Florence, for appellant.

Andrews & Peach, of Sheffield, for appellees.

McCLELLAN J.

The city of Florence filed this bill against Mrs. Darrow (appellant) and others to foreclose an improvement lien on lots 111 and 112 in said city, according to map and plat of the Cypress Land Company. Jacob K. Swoope, who died testate in 1873, owned these lots. Mrs. Darrow, appellant, was Tempe Swoope, a daughter of Jacob K. Swoope, deceased. The character of interest or estate Mrs. Darrow took under her father's will presents the only question for decision. The court below construed Mr. Swoope's will as investing Mrs. Darrow (Tempe Swoope) with a life estate only in lots 111 and 112, with remainder to "testator's brothers and sisters or their descendants," defining the sharing intended. Mrs. Darrow, appellant, contends that she took the fee in these lots "by inheritance" from her father "and under the provisions of his said will."

The will, omitting presently unimportant matter, reads:

"I give to my two nephews Jacob K. Swoope, son of C. C. Swoope, and Jacob Swoope Moore, son of R. E. Moore, to be equally divided between them in absolute right, the proceeds of a policy which there is on my life of ten thousand dollars in the Knickerbocker Life Insurance Company. I give to my daughter Tempe an absolute right in a policy on my life for the sum of twenty-five hundred dollars in the Mound City Insurance Company. I give to my wife, Elizabeth T. Swoope, one-third of all the balance of my property, both real and personal, wherever situated, for the term of her natural life, I give to may daughter, Tempe P. Swoope, all the balance of my property, both personal and real upon the following conditions and limitations, viz.: That should the said Tempe die without issue of her body the said property is hereby given to my brothers and sisters, or their descendents, the descendants of each brother or sister to take that share which the brother or sister would have taken, had he or she been living. Upon the death of my wife, I give and devise to my daughter, Tempe, the portion of property herein given and devised to my wife for the natural life of my wife, and upon the same limitations."

The italicized words in the quotation ante are the particular terms giving rise to the divergent construction taken by the parties. Taking full cognizance of the judicial duty to give appropriate effect to the intent of a testator, our opinion is that the legal principles controlling the construction of the presently important feature of Mr. Swoope's will are stated in Smith v. Smith, 139 Ala. 406, 36 So. 616, and reaffirmed in their statement (not in their application) in the same case as reported in 157 Ala. 79, particularly page 88, 47 So. 220, 25 L. R. A. (N. S.) 1045, in response on rehearing. On the last appeal of Smith v. Smith, 157 Ala. 79, 47 So. 220, 25 L. R. A. (N. S.) 1045, a majority of the court, while reaffirming the rules reiterated on former appeal (139 Ala. 406, 36 So. 616), construed the codicil to Mrs. Bacock's will as manifesting an intent to refer the survivorship contemplated to a point of time after the testator's death-this in recognition of the expressly avowed purpose of Mrs. Bacock to modify and thus to change the original devise made in her will.

We find in Mr. Swoope's will no indication or evidence of an intent that would justify the denial of the effect of the rule restated, as from Hoover v. Hoover, 116 Ind. 498, 19 N.E. 468, in Smith v. Smith, 139 Ala. 413, 36 So. 617:

"*** Words of survivorship in a will, unless there is manifest intent to the contrary, always relate to the death of the testator, and that, in the absence of a contrary intent, a will always speaks as from the date of the testator's death."

The reference to the "same limitations," the final words in our quotation of the will, contribute nothing to aid the construction of the feature of the will, the effect of which is now contested. Those words but operate to reiterate, in that connection, the "conditions and limitations" thereinabove prescribed and defined. The terms of the will considered in Dickson v. Dickson, 178 Ala. 117, 59 So. 58, are materially different from those employed by Mr. Swoope in his will. In the Dickson will there was provision for reverter in the contingency defined, and the concluding paragraph of the opinion (178 Ala. 1211 ) discloses the dominating effect that provision was held to have. The rule and principle to which our conclusion is referable is also illustrated in Haigler v. Haigler, 202 Ala. 480, 80 So. 864. The Haigler Case, supra, was approvingly cited in Fowlkes v. Clay, 205 Ala. 523, 88 So. 651, 654.

Reading the presently contested clause of Mr. Swoope's will in the light and with the aid of the quoted rule, it results that Tempe Swoope (Mrs. Darrow) took the fee in the lots in question, relieved of the "conditions and limitations" provided-these "conditions and limitations" serving their entire purpose when Mrs. Darrow survived the testator, her father.

The decree is reversed. The cause is remanded, for further proceedings in accordance with this opinion.

Reversed and remanded.

ANDERSON, C.J., and SOMERVILLE and THOMAS, JJ., concur.

On Rehearing.

McCLELLAN J.

As appears from the original opinion, ante, only the therein italicized expressions of the will of Mr. Swoope were undertaken to be construed; the court below having referred the title to the two lots in question to that feature of the will, saying that the issue between the parties was to be resolved upon a construction of that part of the will, quoting it only. This court has not, hence, expressed its judgment as to the application or effect of the rule of construction stated in the original opinion, ante, upon these words in the will:

"I give to my wife, Elizabeth T. Swoope, one-third of all of the balance of my property, real and personal, wherever situated, for the term of her natural life. *** Upon the death of my wife, I give and devise to my daughter Tempe the portion of property herein given and devised to my wife for the natural life of my wife, and upon the same limitations."

It is to be observed that this feature of the will gave to the testator's widow a life estate in "one-third of all of the balance of my [his] property," with remainder to Tempe Swoope (appellant) "upon the same limitations" therein above stated, viz.: "That should the said Tempe die without issue," etc. In recognition of the effect of the introduction of a previous life estate to define the period of division, it was said in Burleson v. Mays, 189 Ala. 107, 119, 66 So. 36, 40, through approving quotation:

"If there is no previous interest given, the period of division is the death of the testator and survivors at his death take the whole; but, if a previous life estate be given, then the period of division is the death of the life tenant and survivors at such death take the whole."

In the feature of the will under construction (italicized in the original opinion, ante), there is no provision for an intervening life estate, as is the condition in the feature of the will providing a life estate only for Mrs. Swoope in one-third of the testator's real and personal property; the expression "upon the same limitations" being there necessarily referable to the remainder consequent upon the stated life estate in the wife of the testator, and hence, according to the discriminating authority of Burleson v. Mays, supra, the rule of Smith v. Smith (cited in the original opinion, ante) is not applicable to the status made by the provisions of this testator's will creating a life estate in Mrs. Swoope and a remainder in Tempe Swoope (Darrow), "upon the same limitations."

Taking due account of the doctrine of Burleson v. Mays, it is evident that the phrase "upon the same limitations," as latterly employed in the instrument contributes nothing toward the conclusion, urged for appellee, that the existence or presence of the "conditions and limitations," upon which the bequest and devise to Tempe Swoope (Darrow) was made in the feature of the will under construction (italicized in the...

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    • United States
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    ... ... 179; Smith et al. v. Smith, 157 Ala. 79, 47 ... So. 220, 25 L. R. A. (N. S.) 1045; Darrow v. City of ... Florence et al., 206 Ala. 675, 91 So. 606; Hinton v ... Gilbert, 221 Ala. 309, ... ...
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