Hibbler v. Oliver

• Decision Date: 20 May 1915
• Docket Number: 577
• Citation: 69 So. 477,193 Ala. 369
• Parties: HIBBLER et al. v. OLIVER et al.
• Court: Alabama Supreme Court

69 So. 477

193 Ala. 369

HIBBLER et al. v. OLIVER et al.

No. 577

Supreme Court of Alabama

May 20, 1915

Appeal from Chancery Court, Sumpter County; Thomas H. Smith Chancellor.

Action by W.G. Hibbler and others against Sallie J. Oliver and others. From a decree for defendants, plaintiffs appeal. Affirmed.

Frank S. White & Sons, of Birmingham, for appellants.

Oliver Verner & Rice, of Tuscaloosa, J.M. Foster, of Montgomery, and Willett & Willett, of Anniston, for appellees.

MAYFIELD J.

Appellants filed this bill against appellees. The bill seeks a sale of lands for distribution among tenants in common, and incidentally, an accounting as for waste. The real question presented is whether or not the bill shows complainants to have any title to the lands; that is, does it show them to be tenants in common with appellee?

Appellants claim title through the will of their grandfather, W.H Hibbler, and claim to have acquired a remainder, after the determination of a life estate only, which their father, James Hibbler, acquired under the same will. The will of the grandfather is short, and we here set it out: "In the name of God, Amen: I, W.H. Hibbler, being in good health, sound in body and mind, being about to take a journey from home, knowing the uncertainty of life and being desirous that all I possess should be divided among my wife and children, do make this my last will and testament.

"My desire that my property should be divided equally among my dear wife and children, viz.: H.E. Sessums, Talbot, James, Martha, Fanny and the child that my wife is now bearing, should it live. My desire that my wife should live on this my home residence during her natural life. My Noxubee plantation & my Washington plantation, I want sold if times are prosperous, if not as soon as they are prosperous. I then want the negroes equally divided between my dear wife and all my children and want the negroes of the children hired out until the boys become of age and until the girls become of age or marry. I don't want a division to take place only as they become of age, for fear some of them should have bad luck with their property, but want my wife to draw out her part and let the children's negroes be hired out undivided, and let each one draw his proportional part as they become of age or girls marry. I want the money and property given to my daughter H.E. Sessums to be accounted into her share, five thousand five hundred dollars in money and one negro girl named Lizzy, value at one thousand dollars.

"N.B. I want my land sold one, two, three, four, and five years credit with interest from date of sale and my home place sold at the death of my dear wife and divided between all my children or the lawful heirs of their bodies. My desire and will is that all my property, land and negroes go to my children and the heirs of their own bodies, and should any one of them die without a lawful heir of their own bodies, I want all they have received from my estate to return to my other children or the heirs of their bodies.

"Written, signed and witnesses this the 28th day of Feby., 1861. William H. Hibbler."

Appellants base their claim upon the last sentence in the last clause of the will. We feel certain in deciding that appellants did not take a remainder in these or any other lands by virtue of this or any other clause in this will. If the title to the lands of the testator could be said to have passed to the devisees by the will, then their father took a fee, and act a life estate. While the fee which he took was subject to be defeated by his dying without issue, the bill shows that he died with issue and that appellants are the issue. Therefore it conclusively appears from the bill that the only condition which could have defeated or cut down the fee of their father never happened, and that complainants could not take as remaindermen because there was no remainder.

Wills with similar provisions have been construed by this court, and in each instance they were given the effect which we now give this clause under consideration. Carter v. Couch, 157 Ala. 470, 47 So. 1006, 20 L.R.A. (N.S.) 858; Shuttle & Weaver v. Barker, 178 Ala. 366, 60 So. 157. In the latter case, in a headnote, the ruling is thus stated:

"Where a testator gave to his son certain described real estate in trust for his granddaughter for her sole use, and the heirs born of her body, free from any control or liability for the debts of any husband she might subsequently have, and in the event of her death, without living issue, the property should go to others, and at the time of the will, and testator's death, such granddaughter was an infant and unmarried, but subsequently married, and had a child, the granddaughter acquired an absolute fee, and a grantee under a conveyance executed by her and her husband acquired title."

The first of these cases cites the text, 24 American & English Encyclopaedia of Law, pp. 431, 432. The rule as to limitations over, after failure of issue, is thus stated there:

"Limitations after a fee simple or determinable fee must be executory, since such limitation could not take effect at common law as a remainder. Executory limitations of this character may take effect in defeasance of a fee simple or a fee tail, or may await the regular determination of a determinable fee, provided it does not offend the rule against perpetuities. After a conditional fee an executory devise may be valid, although it appears that a different rule has prevailed in South Carolina."

Any possible rights or titles which complainants could have acquired under the will in question must fall within this rule. The children of the testator unquestionably take a fee, either absolute or conditional. If absolute, then, of course, appellants here, who were the grandchildren of the testator, would take nothing under the will of their grandfather, but would have to take as heirs, by inheritance from their father. If they were to claim by inheritance from their father, they could not take, because their father conveyed by warranty, and had no interest when he died. If the father's estate was a conditional fee (which it unquestionably was), subject to be defeated upon his dying without issue, then the bill shows that the condition did not happen--the father died with children living, who were the complainants. In no event could these complainants take under their grandfather's will. Their existence at the death of their father made the devise or legacy to their father an absolute fee. If the father had never had any children, or probably if he had no issue living at his death, a remainder at his death might have gone over, as an executory devise; but it could not go to his children, these plaintiffs, because his fee was made absolute by reason of the very fact that children or issue were living when he died.

The rule is thus stated by the Supreme Court of the United States in Abbott v. Essex Co., 18 How. 213, 15 L.Ed. 352:

"In the case of Pells v. Brown, Cro. Jac. 590 where there was a devise 'to A. in fee, and, if he die without issue living, then C. shall have the land,' it was held to be an executory devise to C., on the contingency of A. dying in the lifetime of C. without issue. *** In Porter v. Bradley, 3 T.R. 143, where lands were devised to A. and his heirs, and if he die leaving no issue behind him then over, it was decided that the limitation over was good by way of executory devise; and Lord Kenyon acknowledges the case of Pells v. Brown to be 'the foundation and magna charta of this branch of the law,' deciding that the words 'leaving no issue behind him' showed clearly that the testator did not contemplate an indefinite failure of issue." If the will had passed the title out of the testator to the land in question, the plaintiffs would have taken nothing under it; but the will did not pass title to any one, so far as the lands were concerned. It merely directed that the lands should be sold, and the proceeds of the sale were disposed of as legacies. There was no attempt to dispose of the land, by devising the land itself, except that the wife of the testator (the grandmother

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