Montgomery v. Wilson

• Decision Date: 07 November 1914
• Docket Number: 519.
• Citation: 66 So. 503,189 Ala. 209
• Parties: MONTGOMERY et al. v. WILSON et al.
• Court: Alabama Supreme Court

66 So. 503

189 Ala. 209

MONTGOMERY et al. v. WILSON et al.

No. 519.

Supreme Court of Alabama

November 7, 1914

Appeal from Law and Equity Court, Lee County; Lum Duke, Judge.

Bill by L. Penn Montgomery and another against Maud Wilson and others to quiet title to land. Decree for respondents, and complainants appeal. Reversed and rendered.

The following is the will of Thomas L. Penn:

After the usual testamentary statement and the direction as to the paying of debts and burial, contained in items 1 and 2, item 3 is:

"The remainder of my entire estate, after paying my funeral expenses and debts, I give and bequeath to my two grandchildren, L. Penn Montgomery and Louis Walton Montgomery, share and share alike, to be delivered to and held by them in the manner and at the time and upon the conditions hereinafter named.

"4. I will and direct that all my property of every kind and description of which I may die seised or possessed be held and kept together, and managed and controlled by my executors until April 23, 1916, during which time the net income arising therefrom shall be equally divided and paid annually to my two grandsons, to wit, L. Penn Montgomery and Louis Walton Montgomery.

"5. In the event that either of my said grandsons above mentioned should die and leave no child or children or other lineal descendants surviving him, I give the legacy intended for such grandson so dying to the other of them, to be held and used by him during his natural life, with the remainder over to his child or children or other lineal descendants should he leave such.

"6. In the event that both of my said grandsons above mentioned should die and leave no child or children or other lineal descendants surviving them, I give the legacies intended to both of my said grandsons so dying to the children of my niece Alice Young, wife of James Young, now residing at Woodville, Green county, Georgia, and to the children of her full brothers, Albert Gorham and Monroe Gorham, and the child or children of any other full brother of said Alice Young, to be divided among said children as follows: One half of my estate to the children of said Alice Young, share and share alike, and the other half of my estate, to be divided share and share alike, among the children of the brothers of said Alice Young."

7. Nominating L. Penn Montgomery and Louis Walton Montgomery as executors and relieving them from giving bond, or from in any manner accounting to any court whatever, directing that the will be proven and recorded in the probate judge's office of Lee county, Alabama, and adding:

"But I direct that as soon as practicable after my death they may two full and complete inventories of my estate, one to each of said executors, and that they make annual settlement between themselves until April 23, 1916, at which time they are directed to divide between themselves all the property then held by them, share and share alike. In making such division, I direct that my real estate be appraised and divided in kind, as near as practicable into two equal parts according to value, and that each of my said grandchildren receive one of said parts, and in case one part should exceed in value the other part, the one receiving the most valuable part shall pay the difference to the other."

R.C Smith and Barnes, Denson & Denson, all of Opelika, for appellants.

Horace M. Holden, of Athens, Ga., Samuel H. Sibley, of Union Point Ga., and Frank C. Shackelford, of Athens, Ga., for appellees.

DE GRAFFENRIED, J.

Thomas L. Penn, then an old man, executed his will on January 5 1911, and his will is before us for construction. The reporter will set out the will, as it is necessary, in order that our meaning may be understood, that this opinion shall be read in connection with the will.

1. The cardinal rule, in interpreting a will, is to ascertain, from the words used in the will, the real intent of the testator and then to construe the will according to that intent. Wills are frequently inartificially drawn, and for that reason they should receive greater liberality of construction than is to be given to ordinary legal instruments; and the true spirit of a will, when its true spirit is ascertainable from its words and is not in conflict with the law, must control the court which is called upon to construe it. Smith v. Smith, 157 Ala. 79, 47 So. 220, 25 L.R.A. (N.S.) 1045.

2. In this connection we may also add that in cases of doubt, the law leans to that construction of a devise which will result in vesting in the devisee a fee-simple title to land. Code 1907, § 3396.

"As to the partiality of the law for vested over contingent estates, it is well settled that in doubtful cases an interest shall, if possible, be construed to be vested in the first instance, rather than contingent; but, if it cannot be so construed, it shall at least be construed to become vested as early as possible, a principle applicable alike to real and personal property." Campbell, Gdn., v. Weakley, Adm'r, 121 Ala. 64, 25 So. 694.

3. This will was made by the testator in January, 1911, and at that time he was 79 years old. At that time the appellants were respectively, 24 and 26 years of age. The testator died in May, 1911, and in the fifth clause of his said will he provides that if either of the appellants "should die and leave no child or children or other lineal descendants surviving him, I give the legacy intended for such grandson so dying to the other of them, to be held and used by him during his natural life, with remainder over to his child or children or other lineal descendants, should he leave such." In the sixth paragraph of his will the testator declares that, if both appellants die without "a child or children or other lineal descendants," then that the property devised shall become the property of appellees. In the seventh paragraph of his will the testator clearly shows that he anticipated an early death--and he did, in fact, live only three or four months after he made the will--because, in that paragraph, he directs that his estate shall be kept together until April 23, 1916, when he directs it to be divided between appellants. It will be thus seen that the testator, when he made his will, expected to be dead and his estate wound up within less than six years from the writing of the will. Appellants were then, as already stated, only 26 and 24 years of age, respectively. The...