Orr v. Helms

• Decision Date: 29 March 1928
• Docket Number: 8 Div. 987
• Citation: 117 So. 61,217 Ala. 603
• Parties: ORR v. HELMS et al.
• Court: Alabama Supreme Court

117 So. 61

217 Ala. 603

ORR v. HELMS et al.

8 Div. 987

Supreme Court of Alabama

March 29, 1928

Rehearing Denied May 31, 1928

Appeal from Circuit Court, Morgan County; James E. Horton, Judge.

Bill in equity by Leta A. Orr against Arthur Hugh Helms and others for construction of the will of John W. Orr, deceased. From a decree sustaining demurrer of defendant named to the bill complainant appeals. Affirmed.

E.W Godbey, of Decatur, for appellant.

S.A Lynne, of Decatur, for appellees.

ANDERSON C.J.

It is a well-established legal principle in this state that words of survivorship as used 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, and cases cited. The present will, however, clearly shows a manifest intent to base the survivorship of the daughters upon the death of the wife and not the testator. It says:

"In the event of the death of either of my said daughters before my wife dies."

It is also well established that a clear and absolute gift is not to be cut down by anything which does not with reasonable certainty indicate an intention to cut it down. Pitts v. Campbell, 173 Ala. 604, 55 So. 500. While the present will recites that after the death of the testator's wife the estate is to be equally divided between his three daughters, "share and share alike in fee simple," it is followed by the following provision:

"In the event of the death of either of said daughters before my wife dies, then if such daughter leaves no lineal descendants, said property is to go and become the property in fee simple of the surviving daughter or daughters but if one or more of said daughters leave children, such children will take the place of the parents in this devise and shall have the part such parent had taken had she or they lived."

It is therefore clearly manifest that, while the devise to the daughters says in "fee simple" after the death of the wife, the last-quoted provision limits it to the survivorship of the testator's wife.

It will be noted that the fee simple is not to the daughters in praesenti, but only after the death of the wife, and the later provision was evidently intended to provide against a contingency in the event the wife survived the daughters or some of them. It is a well-established rule of construing wills that the intent of the testator is the chief thing to ascertain and which must be gathered from the will in its entirety and each...