Gentle v. Frederick

• Citation: 234 Ala. 184,174 So. 606
• Decision Date: 20 May 1937
• Docket Number: 6 Div. 121
• Parties: GENTLE et al. v. FREDERICK.
• Court: Alabama Supreme Court

174 So. 606

234 Ala. 184

GENTLE et al. v. FREDERICK.

6 Div. 121

Supreme Court of Alabama

May 20, 1937

Appeal from Circuit Court, Winston County; R.L. Blanton, Judge.

Bill to sell land for division by Susan E. Frederick against Nancy R Gentle and Martha J. Gentle. From a decree for complainant respondents appeal.

Affirmed.

J.J Curtis and Herman Maddox, both of Jasper, for appellants.

Roy Mayhall, of Haleyville, for appellee.

BOULDIN Justice.

Bill to sell lands for division.

The issue, purely one of law, is whether appellants own each a one-half interest in the property, or each owns a one-third interest, the other third being owned by their sister, the appellee.

Admittedly this turns on the construction of a deed made by their father, Jesse Gentle, to another sister, Mary L. Gentle, now deceased.

This deed is in the usual form of a warranty deed conveying a title in fee simple. The recited consideration is "one dollar and other valuable consideration." The granting clause is "do grant, bargain, sell and convey unto the said Mary L. Gentle" the property described.

The habendum clause reads: "To have and to hold the same unto the said Mary L. Gentle, her heirs and assigns forever." Then follows the usual covenants of seisin in fee simple, freedom from incumbrance, good right to convey, and: "That I will, and my heirs, executors, and administrators shall warrant and defend the same to the said Mary L. Gentle, heirs, executors, and assigns, forever, against the lawful claims of all persons whatsoever."

But written into the body of this deed between the description of the property and the habendum clause is the following: "The consideration and intention of the maker of this deed directs that at the death of Mary L. Gentle the title to the above land pass to her sisters that are living, Susan E. Gentle, Minnie F. Gentle, Nancy R. Gentle and Martha J. Gentle but directs that she may at any time sell and convey same at her will while she is living." (Italics supplied.)

The grantee, Mary L. Gentle, did not sell and convey the lands while living, but undertook to pass the property by will to her two sisters, Nancy R. Gentle and Martha J. Gentle, the appellants.

The appellee, formerly Susan E. Gentle, claims a one-third interest as one of the three sisters of the grantee, surviving at her death, by virtue of the remainder limited under the above-quoted clause of the deed.

In the very recent case of Reeves v. Tatum, 233 Ala. 455, 172 So. 247, considered by the full court, practically all the governing principles here involved were treated with a review of authorities. Without reviewing the authorities, we are of opinion:

First. If the deed passed to the grantee only a life estate, with remainder limited to the surviving sisters, the further power of disposition conferred upon the grantee did not pass a fee-simple title to her as against the remaindermen. Code 1923, § 6928. Reeves v. Tatum, supra.

Second. The power to sell and convey while living did not carry the power to dispose of by will. Reeves v. Tatum, supra. The instant case turns, therefore, on whether the deed passed to the grantee a fee-simple title, or only a life estate, coupled with a power of disposition which was never exercised. Admittedly this is to be determined from the deed itself. No averments of surrounding circumstances to aid in its construction appear.

It is a well-established rule that where the deed employs words of grant which clearly import an estate in fee simple, such estate is not to be cut down to a less estate,...