Lattimer v. Stratford, 3 Div. 628

• Decision Date: 30 June 1953
• Docket Number: 3 Div. 628
• Citation: 66 So.2d 720,259 Ala. 405
• Parties: LATTIMER et al. v. STRATFORD.
• Court: Alabama Supreme Court

Page 720

66 So.2d 720

259 Ala. 405

LATTIMER et al. v. STRATFORD.

3 Div. 628.

Supreme Court of Alabama.

June 30, 1953.

Rehearing Denied Aug. 6, 1953.

Walter J. Knabe, Montgomery, for appellants.

Godbold & Hobbs, Montgomery, for appellee.

PER CURIAM.

This is the second appeal in this case. The first appeal was from a decree sustaining demurrers to the bill of complaint. Stratford v. Lattimer, 255 Ala. 201, 50 So.2d 420. We there held that the demurrers were not well taken and, accordingly, reversed and remanded the case. The present appeal is from the final decree granting the relief prayed for. The questions now presented are the same as those presented and determined in the first appeal. The only difference is that on the first appeal the sufficiency of the allegations of the bill was being tested by demurrer, while in the instant appeal we have for consideration proof of the allegations. There is no conflict in the evidence, nor is there any question about the evidence being ample to support the allegations. We see no need, therefore, of here making a repetitious recital of details of the case.

As is required of us, we have reviewed the case anew on this appeal without regard to the former decision. Code 1940, Tit. 13, § 28; Wilkey v. State ex rel. Smith, 244 Ala. 568, 579, 14 So.2d 536, 151 A.L.R. 765; Birmingham News Co. v. Birmingham Printing Co., 213 Ala. 256, 258, 104 So. 506. We do not find that there is any conflict between our present views as to the law of the case and the conclusions reached in the former opinion. Accordingly, for the purposes of this appeal, we expressly approve the rulings on the law and the conclusions reached in that opinion, Stratford v. Lattimer, supra.

The decree of the lower court is due to be, and is, affirmed.

Affirmed.

LIVINGSTON, C. J., and LAWSON, SIMPSON, STAKELY and MERRILL, JJ., concur.

GOODWYN, J., dissents.

GOODWYN, Justice (dissenting).

It is my view that the deed of May 11, 1898, from S. Cornelia Graham to her daughter, Eugenia Stratford, conveyed a life estate to said Eugenia Stratford with a vested remainder in her children. Therefore, I respectfully dissent from the majority holding 'that the language of the conveyance from Mrs. Graham to her daughter, Eugenia, imports a contingent stirpital disposition of the property to the grantee's children after grantee's death'. [255 Ala. 201, 50 So. 423].

Leaving out the description and the acknowledgment, the deed here involved is as follows:

'State of Alabama

'Montgomery County

'Know All Men By These Presents: That I, S. Cornelia Graham, for and in consideration of the natural love and affection which I have for my daughter, Eugenia Stratford, and for the further consideration of the sum of Five ($5.00) Dollars to me in hand paid by the said Eugenia Stratford the receipt whereof is hereby acknowledged, have granted, bargained and sold, and by these presents to hereby grant, bargain, sell and convey unto the said Eugenia Stratford, for and during the term of her natural life, and after her death to her children, the following described real estate situated in the City and County of Montgomery, and State of Alabama, to-wit:

* * *

* * *

'To have and To Hold the aforegranted premises, together with the appurtenances, privileges and improvements thereunto belonging, unto the said Eugenia Stratford for and during the term of her natural life and after her death to her children or their descendants; that is if any of the said Eugenia Stratford's children shall die before the said Eugenia, leaving a child, or children, such child or children shall take the interest in said lot to which the parent would have been entitled had it been living. (Italics supplied.) set my hand and seal this the 11th day of May, 1898.

'/s/ S. Cornelia Graham (L.S.)'

Aside from any other consideration, it seems to me that the decision of this court in the case of McCurdy v. Garrett, 246 Ala. 128, 19 So.2d 449, effectively and completely answers any question as to the right of the four children of Eugenia Stratford, by their deed of May 28, 1920, to merge in their mother, the said Eugenia Stratford, the entire title to the property which she could devise by will. In that case, C. W. Garrett devised and bequeathed his property to his wife during her natural life and widowhood; and at her death it was to vest, share and share alike, in his children, both those living and any after born children. The will then provides as follows:

'Should any of said children die leaving a descendant or descendants living, then the share of such deceased child, shall go to his or her said descendant or descendants.'

The question there presented and determined was whether the children of the testator 'took a vested remainder in fee' as against the claim of a son of one of the testator's children that he had 'a contingent remainder, the right of enjoyment being postponed until the death of his grandmother and his mother.' It was held that the testator's daughter and her five living children owned and held 'the entire title to said property and have the right to sell and convey the same; and, so long as they jointly agree, to dispose of the proceeds thereof as they see fit.' In reaching this conclusion, this court said:

"The settled law is that a will speaks from the death of the testator, and that, in the absence of a clear manifestation of the testator's intent to the contrary, estates shall be held to vest at the earliest possible period. The intent to postpone the vesting of an estate must be clear, and must not arise by mere inference or construction. 'The law will not construe a limitation in a will into an executory devise when it can take effect as a remainder, nor a remainder to be contingent when it can be taken to be vested.' * * *.' Duncan v. De Yampert et al., 182 Ala. 528, 62 So. 673, 674.

'The primary objects of the testator's bounty, as clearly appeared, were his wife and his five daughters, all of whom are still in life and are his heirs at law. The manifest intent of the testator was to vest in his wife a limited estate for life or during widowhood, to her full enjoyment, with a limited power of disposal for reinvestment or payment of testator's debts, with vested remainder to his five daughters, in the absence of other children born to testator and his wife. White et al. v. Fowler, 245 Ala. 209, 16 So.2d 399; Wilson et al. v. Ward, 224 Ala. 147, 138 So. 826. The contingency in respect to the death of the named devisees connotes a testamentary intent to vest the remainder in the named devisees and to direct the descent according to the law of descent and distribution. So that the complainants named in the bill, all of whom are sui juris, own and hold the entire title to said property and have the right to sell and convey the same; and, so long as they jointly agree, to dispose of the proceeds thereof as they see fit.' (Italics supplied.)

But without considering the McCurdy case, supra, as controlling authority, it seems to me that a reasonable interpretation of the deed, in the light of recognized rules of construction, permits of no other conclusion than that the grantor intended to vest the remainder in the children of Eugenia Stratford.

In the recent case of Henry v. White, 257 Ala. 549, 60 So.2d 149, 152, this court, through Lawson, J., had occasion to review and again approve the following apt rules of construction, viz.:

'The real inquiry in the construction of a deed is to establish the intention of the parties especially that of the grantor; but a corollary to this rule is that the intention must, if possible, be gathered from the language used in the instrument submitted for construction and that, when it can in this way be ascertained, arbitrary rules are not to be applied. Dickson v. Van Hoose, 157 Ala. 459, 47 So. 718, 19 L.R.A.,N.S., 719. So-called arbitrary rules should never be resorted to until all efforts to reconcile the conflicting parts have failed. Petty v. Boothe, 19 Ala. 633.

'If, however, two conflicting intentions are expressed which cannot be reconciled there is no alternative but to construe the deed by the rules, even though they may be denominated arbitrary. Dickson v. Van Hoose, supra; Graves v. Wheeler, 180 Ala. 412, 61 So. 341.

'One of the rules in the construction of deeds is that if there be two clauses which are utterly inconsistent with each other, and which cannot be reconciled or made to stand together, the last shall give way to the first, the maxim being 'the first clause in a deed, and the last in a will shall prevail.' Petty v. Boothe, supra. The rule has been stated many times in our cases that the granting clause, unless ambiguous or obscure, prevails over introductory recitals, statements in the habendum clause or other clauses in the deed, if they are contradictory or repugnant to the granting clause. * * *

'If the granting clause does not expressly designate the estate conveyed, and there is nothing in the other parts of the deed to indicate the estate intended to be conveyed, the provisions of Title 47, § 14, Code 1940, have application. Said section reads: 'Every estate in lands is to be taken as a fee simple, although the words necessary to create an estate of inheritance are not used, unless it clearly appears that a less estate was intended.' Graves v. Wheeler, supra.

'But where the granting clause does not expressly designate the estate conveyed, and the other clauses indicate the nature and character of the estate conveyed, there is no room for the operation of the provisions of law now codified as § 14, Title 17, Code 1940. Graves v. Wheeler, supra. The conclusions reached in Deramus v. Deramus, 204 Ala. 144, 85 So. 397, 398; Ward v. Torian, 216 Ala. 288, 112 So. 815; Gentle v. Frederick, 234 Ala. 184, 174 So. 606, are in accord with this principle. None of the granting clauses in the deeds construed in those cases expressly designated the estate conveyed, whereas other...