Dickson v. Dickson

• Decision Date: 14 May 1912
• Citation: 178 Ala. 117,59 So. 58
• Parties: DICKSON ET AL. v. DICKSON.
• Court: Alabama Supreme Court

59 So. 58

178 Ala. 117

DICKSON ET AL. v. DICKSON.

Supreme Court of Alabama

May 14, 1912

Appeal from Chancery Court, Chambers County; W. W. Whiteside Chancellor.

Bill by Martha Dickson against Louis F. Dickson and others to quiet title to land under the statute. Decree for complainant, and respondents appeal. Reversed and remanded.

Answering the bill, the respondents admitted all the allegations of the bill, and in setting forth their claim they aver that they claim an interest in said land as devisees named in the will of M. A. Dickson, deceased, and that under the said will they claim an interest in the said property as remaindermen, and set up item 3 of said will in support of their claim.

Barnes & Denson, of Opelika, for appellants.

Campbell & Denson, of Birmingham, for appellee.

MAYFIELD J.

It is conceded that the sole question presented by this appeal is whether appellee took an absolute fee upon the death of the testator, her father, or merely a conditional fee, subject to be determined upon her death with children surviving her. A proper construction of the third item of her father's will determines this question; the facts being undisputed. This item reads as follows: "3rd Item. I give, bequeath and devise to my said daughter Martha T. Dickson the following property, to wit: The home place whereon I now reside, consisting of lot No. 32 according to Sheppard's map, in the city of Lanett, originally Bluffton, Chambers county, Alabama, with all the rights, members and appurtenances to the same belonging or in any wise appertaining. To have and to hold to her own proper use and benefit and behoof forever. Provided, however, should my said daughter leave no child or children surviving her at her death, then in that event the property bequeathed and devised in this item of this will shall revert to my estate and be divided equally between my other children, share and share alike."

The intention of the testator is always the pole star in the construction of wills. With this guide, we cannot agree with the chancellor in his holding that Martha T. Dickson took an absolute and unconditional fee at the death of the testator. We are constrained to hold that she took a fee subject to be defeated upon her dying without child surviving her. It therefore cannot be determined whether she took an absolute or a conditional fee until the contingency mentioned in the will happens. If she dies leaving a "child or children surviving her," then she takes an absolute fee, and the lands descend to her heirs; but if she leave no such child or children, then the remainder reverts to the testator's heirs. The chancellor held that the decision in the case of Smith v. Smith, 139 Ala. 406, 36 So. 616, governed him in his decision and decree. The chancellor evidently overlooked the fact that the decision in that case on a second trial was departed from and greatly modified, if not expressly overruled. See same case, 157 Ala. 79, 47 So. 220 25 L. R. A. (N. S.) 1045, and note. From this note, it will be seen that the authorities are greatly divided upon this question; but we think this court is committed to the rule we have announced. See the cases of English v McCreary, 157 Ala. 487, 48 So. 113, and McWilliams v....