Hughuley v. Burney

• Decision Date: 24 January 1924
• Docket Number: 5 Div. 874.
• Citation: 100 So. 817,211 Ala. 397
• Parties: HUGHULEY ET AL. v. BURNEY ET AL.
• Court: Alabama Supreme Court

100 So. 817

211 Ala. 397

HUGHULEY ET AL. v. BURNEY ET AL.

5 Div. 874.

Supreme Court of Alabama

January 24, 1924

Rehearing Granted June 5, 1924.

Appeal from Circuit Court, Chambers County; S. L. Brewer, Judge.

Bill in equity to quiet title to land by S. L. Burney and others against Amos Hughuley and others. From a decree overruling demurrer to the bill, respondents appeal. Reversed and remanded on rehearing.

Miller and Sayre, JJ., dissenting.

Morrow & Moore, of West Point, Ga., and James J. Mayfield, of Montgomery, for appellants.

Barnes & Walker, of Opelika, for appellees.

SOMERVILLE J.

It is a well-settled rule of a testamentary construction that, when the testator makes provision against the death of a beneficiary by otherwise disposing of his estate or interest upon such a contingency, such beneficiary takes a vested estate upon the death of the testator; the principle being that words of survivorship in a will, unless there is a manifest intent to the contrary, always relate to the death of the testator. Spira v. Frenkel, 210 Ala. 27, 97 So. 104, wherein the cases are collected. This is a presumption founded in part upon the idea that the testator favored the taker first named and in part upon the preference of the law for the early vesting of estates.

There is, however, a well-settled exception to this rule, viz that, where the testator postpones the distribution of his estate to be made to the members of a class until the happening of some event, or until a specified time, then only those who survive as members of the class when the contingency occurs or the time arrives are entitled to share in the distribution. Burleson v. Mays, 189 Ala. 107 119, 66 So. 36, 40; Darrow v. Florence, 206 Ala. 675, 91 So. 606; Smith v. Smith, 157 Ala. 79 (6), 47 So. 220, 25 L. R. A. (N. S.) 1045; 28 R. C. L. 264, § 238.

But since the rule, as well as the exception, rests upon the presumption of a testamentary intent, whenever the context of the will shows a contrary intent the presumption is rebutted, and the rule of construction is without any field for operation. Smith v. Smith, supra; Matter of Smith, 131 N.Y. 239, 30 N.E. 130, 27 Am. St. Rep. 586; 28 R. C. L. 264, § 238.

Whether the rule which postpones the vesting of an interest or estate in a beneficiary until the time named for distribution, i. e., upon the termination of a prior life estate, and limits the beneficiaries to those who may be then living, is operative equally whether the beneficiary remaindermen are designated each by name or are designated generally as members of a class we need not now determine. See, however, Denny v. Kettell, 135 Mass. 138, limiting Blanchard v. Blanchard, 1 Allen (Mass.) 223. The language of the will in Burleson v. Mays, 189 Ala. 107, 66 So. 36, is materially different from the language of the will in this case, and it is not decisive in this question.

In the instant case we think the question of the vesting of the remainder interests in the several devisees and legatees named in the will-specifically, whether E. L. Burney took a vested estate under his devise upon the death of the testator, or merely a contingent estate to be defeated by his death before the termination of the widow's life estate-must be determined in favor of the first alternative, because contextual provisions indicate that such was the testator's intention.

We see no way to reconcile with any other theory the provision of item 3, subdivision a, that E. L. Burney should pay to the granddaughter, Lucile Wallace, $500 "out of the property bequeathed to him," the payment of which he is required to make within one year from the date of the testator's death. Such a provision and such a requirement are essentially inconsistent with an intention to bequeath (meaning, of course, to give and devise) the property to E. L. Burney only contingently upon his survival of the widow, and not upon his survival merely of the testator.

E. L. Burney could not pay $500 "out of" the property unless it were vested in him, and the time of its payment has no relation to the time of the death of the widow. It will not do to say that the testator intended the legacy of $500 to Lucile Wallace to vest in her at once (as he manifestly did intend), but that he intended that the property "out of" which its devisee was required to pay it would vest in him only at some uncertain future time-possibly many years later.

By item 2 of the will the testator gives, devises, and bequeaths to his wife all of his property, real and personal, "to have during her natural life, provided, however, that she remain single. (Italics supplied.)" In the ordinary course she might very well have remarried within twelve months after the testator's death, thus terminating her estate. Can it be supposed, with any show of reason, that the testator intended, in such an event, that the property given by him to his children and grandchild, severally, should remain unvested and untouched until the death of his wife? Such an intention would, we think, be wholly unnatural and improbable, since it would largely defeat the very purpose for which he had carefully provided, viz., the enjoyment of the devises and legacies by his chosen beneficiaries as soon as the widow's interest was terminated or defeated.

It is evident that the writer of the will was not skilled in the use of testamentary language, and did not use some of his words and phrases with due technical precision-as pointed out by Justice Miller in his dissenting opinion; and we are convinced, from a survey of the entire instrument, that by the first clause of item 3, providing that the division of his property as thereunder devised or bequeathed should be made after the death of his wife, the testator intended to postpone the period of enjoyment only, consistently with the widow's estate, and not to postpone the time of its vesting in the beneficiaries named.

It results that the mortgage given by E. L. Burney to the respondents after the death of the testator conveyed to them the then vested interest of E. L. Burney in the land devised to him; and that neither the mortgage nor the deed of sale thereunder is subject to cancellation at the suit of complainants.

We

hold that the demurrer to the bill should have been sustained, and the decree of the circuit court will be reversed, and the cause remanded for further proceedings.

Reversed and remanded.

ANDERSON, C.J., and GARDNER, THOMAS, and BOULDIN, JJ., concur.

MILLER J. (dissenting).

This is a bill in equity by S. L. Burney and others against Amos Hughuley and others to quiet the title to 262 acres of land, and to remove as a cloud on the title a mortgage and foreclosure deed under it. The defendants demurred to the bill, which demurrer was overruled by the court, and this decree is the error assigned.

The real equity of the bill and the only relief sought by it is the removal of clouds from the title to this land; and whether the mortgage and the foreclosure deed are clouds on the title depend on the construction of the will of S. L. Burney, Sr., deceased, which is made a part of the bill as an exhibit to it. S. L. Burney, Sr., died January 24, 1918, a resident citizen of Chambers county, and left a last will and testament, which was duly probated. That part of the will pertinent to this cause reads as follows:

"(2) I give, bequeath and devise to my wife, Sallie W. Burney, should she be living at my death, all of my real property of which I might die possessed of, and all of my personal property to have during her natural life, provided, however, that she remain single.

"(3) After the death of my wife, it is my wish that my property be divided as follows:

"(a) To my son, J. A. Burney, all of my Lanett property at the Over-head Bridge, consisting of one store building, one six room dwelling house, two four room dwelling houses, and one three room dwelling house. E. L. Burney is to pay out of the property bequeathed to him the sum of $500.00 to my granddaughter, Lucile Wallace, the wife of Fred Brooks, which amount he is given the period of one year from date of my death in which to pay same.

"(b) To my son, E. L. Burney, the Hill or Home Place, containing 262 acres, more or less.

"(c) To my son, S. L. Burney, Jr., my Brown Place, containing 162 acres, more or less.

"(d) To my daughter, Annie Lamb, the Harrington Place, containing 160 acres, more or less.

"(e) To my grand-daughter, Lucile Wallace, the wife of Fred Brooks, I give the further sum of $2,000.00 in cash, to come out of my life insurance.

"If any of the above named legattess die without legal issue or for any reason the said legacies to them should lapse, then the property herein bequeathed to them is to revert to the other relatives nearest of kin."

Sallie W. Burney, widow of the testator, at his death, under his will, went into and is still in possession of the 262 acres of land mentioned as bequeathed to E. L. Burney in paragraph b of section 3 of the will, and which is the land involved in this cause. She is still a widow, has not married since her husband's death. E. L. Burney, son of the testator mentioned in paragraph b of the will, died on January 17, 1921, executed a mortgage on this 262 acres of land to the defendants, who are the appellants, to secure a $3,000 note given by him to them; and E. L. Burney died on February 4, 1922, leaving no issue or lineal descendants, and without ever having any issue. After his death, the defendants, the mortgagees, foreclosed the mortgage, and at the sale became the purchasers of this land for the sum of $3,710.66. The mortgage to the defendants and the foreclosure deed to them were duly recorded in the probate office of Chamber's county, Ala., the county in which the land is...