Duncan v. De Yampert

• Decision Date: 19 June 1913
• Citation: 62 So. 673,182 Ala. 528
• Parties: DUNCAN v. DE YAMPERT et al.
• Court: Alabama Supreme Court

62 So. 673

182 Ala. 528

DUNCAN v. DE YAMPERT et al.

Supreme Court of Alabama

June 19, 1913

Rehearing Denied June 30, 1913

Appeal from Circuit Court, Perry County; B.M. Miller, Judge.

Action by F.P. Duncan against L.P. De Yampert and others. From a judgment for defendants, plaintiff appeals. Reversed and remanded.

McClellan J., dissenting.

George D. Motley, of Gadsden, for appellant.

R.B Evins, of Greensboro, and W.F. Hogue and C.C. Johnson, both of Marion, for appellees.

SAYRE J.

This is an action of ejectment to recover an interest in the Valola plantation in Perry county. L.Q.C. De Yampert, the former owner, died in 1867 leaving a will by which he disposed of the property. Omitting some complications which are of no consequence in this connection, but following the language of the will in all other respects, the item of the will in dispute may be stated as follows: "I devise to my son Asberry H. De Yampert my Valola Plantation, to be held by him for his use and benefit during his natural life, but at his death to be equally divided between the heirs of his body but should he die without leaving a child or children, in that event he shall have the right to dispose of the lands herein devised to him and the heirs of his body in any manner he may see fit." Asberry died in 1908 leaving surviving him two sons, the defendants. At the time of L.Q.C.'s death, Asberry had also a daughter, Linda, who intermarried with plaintiff (appellant) in 1878. Of that marriage a daughter, Inez, was born in 1879. Linda died in 1880; Inez in 1882. All parties claim under the will; defendants claiming directly, plaintiff claiming as the heir at law of his wife through his daughter.

Asberry took as tenant for life--this much will not be denied. He had a power of disposition in a certain event, but that event did not happen, and so, for reasons to be stated hereafter, that power may be dismissed from consideration except for such aid as the language used in creating it may afford in ascertaining the meaning testator attached to the words "the heirs of his body" in the expression of the devise under which the parties claim. Resorting to it for that purpose only, it is made to appear that testator used the terms "children" and "heirs of his [Asberry's] body" indiscriminately to designate the same class of persons. Using the terms interchangeably, he had not in mind the maxim, Nemo est haeres viventis, for a child is a child whether his parent be dead or alive. It must therefore be held that testator's intention was to give an estate in remainder to the children of Asberry. May v Ritchie, 65 Ala. 602, and cases there cited. Upon consideration of the briefs filed at the original submission of this cause we conceived that the parties were thus far agreed; the argument being directed to the question whether upon this interpretation the children of Asberry took vested or contingent remainders.

Upon this interpretation of the will there could be little difficulty in determining that Linda took a remainder which vested in interest at the death of testator. The settled law is that a will speaks from the death of the testator, and that, in the absence of a clear manifestation of the testator's intent to the contrary, estates shall be held to vest at the earliest possible period. The intent to postpone the vesting of an estate must be clear, and must not arise by mere inference or construction. "The law will not construe a limitation in a will into an executory devise when it can take effect as a remainder, nor a remainder to be contingent when it can be taken to be vested." Doe v. Considine, 6 Wall. 476, 18 L.Ed. 869; Bruce v. Bissell, 119 Ind. 525, 22 N.E. 4, 12 Am.St.Rep. 436. "Where a remainder is so limited as to take effect in possession, if ever, immediately upon the determination of a particular estate, which estate is to determine by an event that must unavoidably happen by the efflux of time, the remainder vests in interest as soon as the remainderman is in esse and ascertained; provided nothing but his own death before the determination of the particular estate will prevent such remainder from vesting in possession." Doe v. Considine, supra; Blanchard v. Blanchard, 1 Allen (Mass.) 227. There is a class of cases in which a remainder is regarded as vested, although all the persons who may take are not ascertained or in esse, and cannot be until the happening of some future event. "And that is where there is a devise of a remainder to a class of which each member is equally the object of testator's bounty, as to 'the children' of a person, some of whom are living at the testator's death." 2 Wash. Real Prop. (5th Ed.) § 1545. Our cases have followed these principles. Smaw v. Young, 109 Ala. 528, 20 So. 370; Acree v. Dabney, 133 Ala. 437, 32 So. 127, and cases cited. The question who are to take by enjoyment of the possession in such cases is not to be confounded with the question as to when the estate given vests in the donees. It is perfectly consistent with the vesting of the estate at the death of testator that the class may open to let in after-born children, as testator here no doubt intended should be the case in the event children should be afterwards born to Asberry. 2 Jar. Wills (6th Am.Ed.) marg. p. 1011, note 2. This rule is everywhere followed, and has been observed in a number of our cases, including Inge v. Jones, 109 Ala. 178, 19 So. 435, cited by appellees. So, also, speaking of devises to children (grandchildren in this case) as a class, Jarman says, "that all who have existed in the interval between the death of the testator and the period of distribution, whether living or dead at the latter period, are objects of the gift, and may therefore not improperly be termed objects at that period; their decease before the period of distribution having no other effect than to substitute their respective representatives, supposing, of course, the interest to be transmissible." Page 1033. This is the common rule of the decided cases. Doe v. Perryn, 3 Term Rep. 484; In re Roberts (1903) 2 Ch. 200; Byrnes v. Stilwell, 103 N.Y 453, 9 N.E. 241, 57 Am.Rep. 760; Weston v. Foster, 7 Metc. (Mass.) 297; Dole v. Keyes, 143 Mass. 237, 9 N.E. 625; Budd v. Haines, 52 N.J.Eq. 490, 29 A. 170; Yeaton v. Roberts, 28 N.H. 459; Tindal v. Neal, 59 S.C. 4, 36 S.E. 1004; Hovey v. Nellis, 98 Mich. 374, 57 N.W. 255; Gates v. Seibert, 157 Mo. 254, 57 S.W. 1065, 80 Am.St.Rep. 625; Bruce v. Bissell, 119 Ind. 525, 22 N.E. 4, 12 Am.St.Rep. 436; McArthur v. Scott, 113 U.S. 340, 5 Sup.Ct. 652, 28 L.Ed. 1015. It follows that by the devise to the children of Asberry, his daughter Linda, in the circumstances which have been stated, took a transmissible estate in remainder, which vested upon the death of testator. It seems to us that the fundamental error of appellees' argument on this point lies in the assumption that because the enjoyment of the estate in remainder was postponed until the preceding particular estate should determine--a necessary arrangement where antecedent particular estates are created--therefore the estate in remainder did not vest upon the death of testator, but continued in abeyance pending the prior estate.

But appellees, referring to that clause of the will, as we have quoted it, which provided that if Asberry should die leaving no child then he might dispose of the property according to his own notion, contend that the gift over was to children living at his death, and none other. Necessarily, in view of the res gestea of the will and the language employed testator intended that his son Asberry should have the power of disposition only in the event he left no children living at the time of the latter's death. That event did not happen, as we have seen, and the question is whether, by giving to Asberry the power of disposal in a named contingency, not certain to happen, testator intended to destroy the previously vested estates of those children of Asberry who might perchance die pending the life estate. Possibly the testator took no thought of that precise contingency. At any rate, the language used made no provision for it. And we are not to proceed upon conjecture, but on the words of the will. We cannot reject or add to the legal meaning of the words used unless it is clear upon the whole that to do so would give effect to the testator's intention. We have looked to the words used in creating the power of disposal in Asberry and the event in which it might be exercised as sufficient evidence that by "heirs of his [Asberry's] body" testator...