Appeal
from Shelby County Court; E.S. Lyman, Judge.
Bill by
Cecil Browne against James M. Kidd and others, to quiet title
to land. Decree for complainant and respondents appeal.
Affirmed.
The
copy of the will attached as Exhibit A to said answer is as
follows:
"I, John W. Kidd, of the county of Shelby, state of
Alabama, of sound mind and memory, though advanced in age
and mindful of the
uncertainty of life, do make and publish this my last will
and testament.
"And, first: I commend my soul to God, who gave it, and
my body to the dust, to be buried as my friends may choose
in a Christian way and manner.
"Second: I desire that all my just debts and funeral
expenses be paid out of any money which may be on hand at my
death, or out of the first means which may come to the hands
of my executors out of my estate.
"Third: Whereas I have, in the providence of God, been
twice married and have children by each marriage; my first
children have all left me, and have, by way of advancement
received a part of my estate hereinafter more particularly
set forth, and I have by deed heretofore conveyed to my
beloved wife, Mary Georgiana, and my children by her, through
John M. Kidd and William Singleton, trustees, and in that
deed given to said trustees power and authority to demand of
my executors such legacy or bequest as I might, in my will,
give to my said beloved wife and children in said deed
mentioned, now, hereby ratifying and confirming said deed,
and as the bequests therein alluded to, I hereby give and
bequeath unto my said beloved wife whatever real estate I may
die seised and possessed of situated in Shelby county, and
four mules and one horse to be selected by said John M. Kidd
and William Singleton out of my stock of mules and horses at
my death; four cows and calves, thirty hogs selected in like
manner and four beds and furniture to be selected by my said
wife, and direct that my executors convey to said trustees
said land if any such be owned by me at my death, and deliver
to them all the above mentioned property for the use of my
beloved wife Mary Georgiana and her children William Douglas,
James White and Anna Philida, during the natural life of my
said beloved wife, and at her death to our children forever.
I also give to my beloved wife one buggy and harness and
wagon.
"Fourth: I have heretofore given to my children as
follows: to my daughter Harriett McGraw to the value of
$4,987.00; to my daughter Marle Johnson to the value of
$3374.00; to my daughter Louisa Gashell $2820.00; to my son
Albert J. Kidd to the value of $4235.00; to my son Wilson H.
Kidd to the value of $5512.00; to my son John M. Kidd to the
value of $2840.00; and design in my lifetime, in my own way,
to make my said children equal as to said advancements. Now
it is my desire that my entire estate, not above bequeathed,
of which I may die seised and possessed, be equally divided
among my said sons and daughters mentioned in this section,
and here enjoin it upon my executors hereinafter appointed to
divide my said property so left after taking out the
foregoing specific bequests so as, first, if I, in my
lifetime, shall have failed to equalize said advance, then to
equalize said advances, and then divide said remainder
equally between my sons and daughters named in this fourth
section of this my will, who may be living at my death, and
to the children of such as are or may be dead, the share of
their dead parents.
"Fifth: I hereby appoint my sons Wilson M. Kidd and John
M. Kidd, my executors of this my last will and testament, and
hereby convey to them and invest them or such of them as may
qualify, with full power to do all things necessary to carry
out this my last will and testament; and I now publish this
as my last will and testament in the presence of this 8th day
of November, 1858.
John M.
Kidd.
"Wm.
H. Hannah
"R.L.
Flippin
"Filed for record the 24th day of October, 1865, and
recorded the 17th day of August, 1866.
N.B.
Mardis, Judge of Probate."
The
trust deed referred to in said will, and also in said answer,
a copy of which is thereto attached, is in words and figures
as follows:
"This indenture, made and entered into this 8th day of
November, in the year of our Lord 1858, between John W. Kidd,
of the first part, and John M. Kidd and William Singleton, of
the second part, all of the county of Shelby, state of
Alabama; witnesseth: That, whereas, the said John W. Kidd,
the party of the first part, has been twice married and has
children by each marriage; that his children by his first
marriage are all grown up and left him, and he has, by way of
advancement, given off to them a considerable portion of his
estate, and is desirous to secure to his present wife and
children by her, now, for and in consideration of the love
and affection which the said party of the first part has and
bears for his present wife, Mary Georgiana Kidd, and my sons
by said beloved wife, William Douglas, James White, and
daughter Anna, Philida, and the further consideration of five
dollars by the parties of the second part to me, the party of
the first part, in hand paid, the receipt whereof is hereby
acknowledged, the said party of the first part has sold and
does hereby sell and convey unto the said parties of the
second part the following described lands and property, to
wit: All of my home tract of land lying near and adjoining
the town of Harpersville, and embracing section 32 in
township 19 and range 2 east, except a small portion sold off
as town lots and the graveyard, and forty acres in section 4
and forty acres in section 5, and 76 acres in section 28, and
76 acres in section 33; all in township 20, range 2 east; my
entire home tract, containing eight hundred and sixty acres;
and the following named negro slaves, to wit: a negro woman
Martha, about 30 years old, and her five children: William,
about eleven years old, Martha, about eight years old,
Elbert, about six years old, Sallie, about four years old,
and Smith, about three years old. Also Mark, a man about
thirty years old, and Early, about seventeen years old; and
Charles, about fifteen years old, and Franklin, about 20
years old, and Josiah, about twenty-two years old, and Emma,
about sixteen years old, and Elijah, about sixty years old.
To have and to hold in trust as follows; to wit: In trust for
the use, support and maintenance of said beloved wife Mary
Georgiana and children William Douglas, James White and Anna
Philida, during the natural life of my said wife, remainder
after her death in absolute right to my said children above
named, and in the event my said wife should have any other
child or children by her present marriage, that such child or
children born of my said wife by her present marriage, that
it or they be made equal with my children above mentioned in
said property, but in no event said property or any part
thereof to go to any future husband, should my said beloved
wife have such future husband, or to the children of such
future husband, so as however not to restrain her of the use
of the said property during her natural life. In further
trust that I be permitted to retain the use of said land and
negroes during my natural life. I also hereby authorize and
empower the said parties of the second part, and in the event
they or either of them should die, resign this trust, or be
otherwise removed from the trust herein created, their
successors to demand and recover of my executors any legacy
or bequest which I may give to my beloved wife and children
above named in my last will and testament, and when received
of my executors or administrators to be held by said trustees
for my said wife in the same manner and under the same trust
as above provided.
"John
W. Kidd.
"Attest:
R.L. Flippin.
"S.
Leeper.
"The
State of Alabama, Shelby County.
"Personally came before me _____, a justice of the peace
within and for said county, John W. Kidd, well known to me,
who being duly informed of the contents of the foregoing
deed, acknowledged that he voluntarily signed, sealed and
delivered the same on the day the same bears date, for the
purposes therein expressed, and I further certify that the
said John W. Kidd is the identical person who signed the
same.
"Given under my hand this 8th day of November, 1858.
Wm. M.
Hannah.
"Filed this 9th day of Nov. 1858, and recorded the same
day.
"J.M. McClanahan, Judge of Probate, S.C.
"Filed Oct. 23, 1913."
Riddle
& Ellis, of Columbiana, and Jas. M. Kidd, of Birmingham, for
appellants.
Browne,
Leeper & Koenig, of Columbiana, and Harrison & Welch, of
Talladega, for appellee.
MAYFIELD
J.
Appellee
filed this, his bill to quiet title, as is authorized by
statute. Code, §§ 5443-5449. Appellants answered, setting up
title or claim to the lands in question through a will and
trust deed executed by John W. Kidd in 1858, by which the
testator devised the lands to his wife and his children by
her, thereby creating two estates, one, an estate to his wife
and her children during the life of the wife, and one, a
remainder in fee to the children after her death. The
reporter will set out the will and trust deed.
The
will and deed have been heretofore three times before this
court for construction. See Kidd v. Borum, 181 Ala
144, 61 So. 100, Ann.Cas.1915C, 1226, Cruse v. Kidd,
195 Ala. 22, 70 So. 166, and Kidd v. Cruse, 76 So.
59. The result of these several decisions is the holding,
that the will passed title to the wife and her children as
above indicated--that is, a life estate to the wife, and an
estate to her children during her life--thus making them
tenants in common of the estate for the life of the wife, and
the children the takers of the...
