Johnson v. Terry

• Decision Date: 19 April 1904
• Citation: 139 Ala. 614,36 So. 775
• Parties: JOHNSON ET AL. v. TERRY.
• Court: Alabama Supreme Court

36 So. 775

139 Ala. 614

JOHNSON ET AL. v. TERRY.

Supreme Court of Alabama

April 19, 1904

Appeal from Chancery Court, Geneva County; W. L. Parks, Chancellor.

Bill by Hannah L. Terry, as guardian of Hannah L. Johnson, against J J. Johnson, as executor of J. E. Johnson, deceased, and others. From a decree for complainant, respondents appeal. Reversed.

The bill in this case was filed by Hannah L. Terry, as guardian of Hannah L. Johnson against J. J. Johnson, as executor of the last will and testament of J. E. Johnson, deceased, and the widow and living children of said J. E. Johnson deceased.

The purpose of the bill was to have Hannah L. Johnson, as the widow of Louis Johnson, decreed to be entitled to a one-fourth interest in the estate of J. E. Johnson by virtue of succeeding to the interest of said Louis Johnson in the estate of J. E. Johnson, deceased, under the provisions of the last will, and to have said J. J. Johnson, as executor of the will of J. E. Johnson, file an account and make a settlement of his executorship, and to deliver to the complainant, as guardian of Hannah L. Johnson, the onefourth interest in the estate of said J. E. Johnson, deceased. The rights in the premises were dependent upon the construction of the will of J. E. Johnson. The provisions of the will which are to be construed, and the other facts of the case necessary to an understanding of the decision on the present appeal, are sufficiently stated in the opinion.

On the final submission of the cause on the pleadings and proof, the chancellor decreed that the complainant was entitled to the relief prayed for, and ordered accordingly. From this decree the respondents appeal and assign the rendition thereof as error.

P. N Hickman and Sallie & Kirkland, for appellants.

Mulkey & Carmichael, for appellee.

HARALSON J.

The only question for review, as admitted by counsel on each side, is, whether Louis J. Johnson, under whom his surviving wife, Hannah Johnson, the complainant, claims, took under the will of J. E. Johnson, her husband's deceased father, a vested or contingent estate. If the said Louis took a vested estate thereunder, as the court below held, it is admitted that the decree should be affirmed, but if he acquired only a contingent estate, that it should be reversed. To determine this question, the will of said J. E. Johnson is to be construed. Louis married the complainant, and shortly thereafter, died before he attained his majority, leaving the complainant and no child.

J. E Johnson left a widow and three infant children, Alto May, Louis and Lizzie the latter being the youngest. He appointed his brother, J. J. Johnson, as the executor of and trustee under his will, who duly qualified as such. He gave his executor power to manage and control his estate, to sell any portion of it if he thought best, and to reinvest the proceeds, and to appropriate the rents, income and profits arising from the estate, coming to his hands, or as much thereof as was necessary for the purpose, for the support and maintenance of his family and the education of his children, and the surplus, if any, was to be added to the corpus of his estate, to be disposed of as he afterwards directed.

The fifth, sixth and seventh clauses, with which we have specially to deal, are as follows:

"Fifth. I direct that my executor trustee shall, upon the happening of the events herein mentioned, divide my estate in the following manner, that is to say; as my beloved children, Alto May and Louis Johnson, (the two oldest) shall respectively arrive at the age of twenty-one years, it shall be the duty of my executor and trustee, to take an inventory of my then estate, adding thereto whatever then may have been (of) rents, income and profits, and to pay to such child his or her pro rata share of said estate, to wit, a one-fourth part, taking therefor his or her receipt.

"Sixth. I direct that when my youngest child, Lizzie, shall arrive at the age of twenty-one years, my executor and trustee shall again take an inventory, adding thereto all rental incomes and profits which may have accrued, and divide the same in equal proportions between my said child Lizzie, and my beloved wife, Lizzie, taking therefor, their separate receipts.

"Seventh. I further direct, that in the event either of my said children die before attaining the age of twenty-one years, or if my wife should die before the majority of my child, Lizzie, then the share of my estate of such deceased, shall be divided in equal parts between the survivors."

The provisions of this last item, 7, apply alike to all of testator's children,--the two oldest, Alto May and Louis and to Lizzie, the youngest,--and the word, "survivors," the...