Fowlkes v. Clay

• Decision Date: 21 April 1921
• Docket Number: 2 Div. 701
• Citation: 205 Ala. 523,88 So. 651
• Parties: FOWLKES et al. v. CLAY et al.
• Court: Alabama Supreme Court

88 So. 651

205 Ala. 523

FOWLKES et al. v. CLAY et al.

2 Div. 701

Supreme Court of Alabama

April 21, 1921

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

Bill by Samuel A. Fowlkes and others against Mary Clay and others, to construe the will of Mary L. Clay, deceased. From the decree rendered, complainants appeal. Affirmed.

Craig &amp Craig, of Selma, for appellants.

Keith &amp Wilkinson, of Selma, for appellees.

THOMAS J.

The bill was by the trustee for construction of the will of Mary L. Clay, deceased, and for instruction as to distribution of the estate. The submission for final decree was upon the bill, answer, and agreed statement of facts, in writing signed by the solicitors of the respective parties in interest.

There are questions of real difficulty arising from the provisions of this will, to prevent the trustee from proceeding with further administration and distribution of the estate without construction and direction by a court of equity, as to the legal effect of the provisions of that instrument. Jemison v. Brasher, 202 Ala. 578, 81 So. 80; Pearce v. Pearce, 199 Ala. 491, 495, 74 So. 952; Dent v. Foy, 204 Ala. 404, 85 So. 709; Gen.Acts 1915, p. 738.

The complainants Edna Clay and Elizabeth pray in their bill that the court declare and decree that by item 11 of said will there was vested in them a fee-simple title to the property devised. That item is as follows:

"I further will and direct that should either of my grandchildren, Edna and Elizabeth Clay, daughters of my deceased son James B. Clay, die without issue, that her share shall descend and vest in the survivor, and in the event both should die without issue, the property herein bequeathed to them shall descend and vest in the issue of my said son J.L. Clay, per stirpes."

The property willed to said respondents is devised by items 5 and 8 (subject to the limitations imposed by the subsequent item 11) as follows:

"I give and bequeath unto my said son J.L. Clay, in trust, the hereinafter described real and personal property to be held by him as trustee for the use, benefit and behoof of my two grandchildren Edna and Elizabeth Clay, daughters of my deceased son, James B. Clay, as follows, to wit: All the land which I own in Perry county, Alabama, containing 750 acres more or less; also the following real estate in Selma, Alabama, with the improvements thereon, the lots known as the Welborn property in the Western part of said Selma; the lot known as the Berry property in East Selma, and an undivided one-half interest in the hereinbefore described Furguson lots. In the event I fail during my lifetime to make contemplated improvements on the said Welborn property, to cost about twenty-five hundred dollars ($2,500.00) I devise and bequeath unto my said son, in trust as aforesaid, out of any money or property belonging to my estate, not herein specifically disposed of, the sum of twenty-five hundred dollars ($2,500.00) in lieu of said contemplated improvements. And also ten shares of the capital stock of the City National Bank of Selma which I now own." Item 5.

"The other half of my estate, not otherwise disposed of, I give and bequeath unto my said son J.L. Clay as trustee for my

said grandchildren, Edna and Elizabeth Clay, daughters of my deceased son James B. Clay." Item 8.

Appellants contend that the decree was in error in declaring that the title to the estate willed complainants-- "vested in them in fee, with the right of survivorship in the event either should die without issue, but subject to be divested upon both dying without issue at any time; and that the said Edna and Elizabeth Clay can take no other title to any of the property under said will, because of said devise over to the children of J.L. Clay; the meaning and intent of the testatrix in said cause being to limit the devise and bequest to a life estate in the said Edna and Elizabeth Clay in the event of both dying without issue either before or after her death."

In short, the insistence of appellants, through the argument of their counsel, is that they took a fee-simple title "upon the death of testatrix, they both being living at the time of the death of the testatrix." We are of opinion that this insistence is not well founded, for the reason that it clearly appears, from a consideration of the whole instrument, that an estate freed of contingency was not intended to be created by the testatrix (Code, § 3396), and that the provisions of the instrument in question did not fall within the class of "doubtful cases" where, under the law, the interest conveyed will be construed as "vested, *** rather than contingent." Gunter v. Townsend, 202 Ala. 160, 166, 79 So. 644; Pearce v. Pearce, supra; Montgomery v. Wilson, 189 Ala. 209, 212, 66 So. 503; Campbell, Guardian, v. Weakley, Adm'r, 121 Ala. 64, 25 So. 694.

The application of common sense in the interpretation of wills has evolved cardinal rules of construction. The testator's intention (if legal), being the law of the instrument, must be gathered from the whole instrument, and all of its parts, after taking due consideration of the manifest scheme of the testator, to ascertain its spirit rather than its letter; and, if possible, to make it "form one consistent whole," where the general and primary interest prevails over a special or secondary interest to the contrary. Pearce v. Pearce, supra; Ralls v. Johnson, 200 Ala. 178, 75 So. 926; Gunter v. Townsend, supra, 202 Ala. 164, 79 So. 644; Jemison v. Brasher, 202 Ala. 578, 579, 81 So. 80; Mims v. Davis, 197 Ala. 88, 72 So. 344; Prater v. Hughston, 202 Ala. 192, 79 So. 564; Smith v. Smith, 157 Ala. 79, 82, 47 So. 220, 25 L.R.A. (N.S.) 1045; Burleson v. Mays, 189 Ala. 107, 66 So. 36; Montgomery v. Wilson, supra; O'Connell v. O'Connell, 196 Ala. 224, 72 So. 81; Dickson v. Dickson, 178 Ala. 117, 121, 59 So. 58; Campbell v. Weakley, supra; Ballentine v. Foster, 128 Ala. 638, 30 So. 481; Chapman v. Brown, 3 Burr. 1634, 10 Eng.Rul. Cases, 790. And it is a further rule of testamentary construction that a residuary clause will be made to yield to a specific, inconsistent provision to the contrary, especially if the latter is subsequent; and, if there is conflict between two clauses that cannot be reconciled, the later clause must prevail. Ralls v. Johnson, supra; Thrasher v. Ingram, 32 Ala. 645; Denson v. Mitchell, 26 Ala. 360; Gibson v. Land, 27 Ala. 117; Walker v. Walker, 17 Ala. 396; Griffin v. Pringle, 56 Ala. 486.

In endeavoring to construe a will according to the intention of the testator, the court will put itself, as far as possible, in the position of the testator by taking into consideration the circumstances surrounding him at the time of the execution of the will (Castleberry v. Stringer, 176 Ala. 250, 57 So. 849; Rutland v. Emanuel, 202 Ala. 269, 80 So. 107), look to the mode of testator's thought and living, and his relations to or associations with the objects of his bounty, and their age, condition, dependence, and the like; for it is presumed that the testator had in view the interests of the legatees who are the objects of his bounty (Travis v. Morrison, 28 Ala. 494; Echols v. Jordan, 39 Ala. 24, 29; Moore v. Moore, 18 Ala. 242; Mims v. Davis, 197 Ala. 88, 72 So. 344; Jemison v. Brasher, supra.

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