Pearce v. Pearce

• Decision Date: 12 April 1917
• Docket Number: 6 Div. 457
• Citation: 199 Ala. 491,74 So. 952
• Parties: PEARCE v. PEARCE et al.
• Court: Alabama Supreme Court

74 So. 952

199 Ala. 491

PEARCE v. PEARCE et al.

6 Div. 457

Supreme Court of Alabama

April 12, 1917

Appeal from Chancery Court, Marion County; James E. Horton, Jr. Chancellor.

Bill by Marvin Pearce, as executor, against Clovis Pearce and others to construe a will. From a decree of the chancellor, this appeal is prosecuted by the proponent. Affirmed.

The will is as follows:

Item 1. Payment of all just debts.

Item 2. Bequest to Jim Pearce, Jr., of $5,000 to be made when he is 21 years old.

Item 3. I will and bequeath to my grandson Clovis Pearce $5,000 as a special fund for his education. If I complete his education before my death, this sum is not to be paid to him. I will hereafter keep an account against my grandson Clovis charging to him such items as I may deem proper, to be charged against his educational fund, and if I should die before his education is completed, my executor is authorized and directed to spend any balance of said sum upon the education of my grandson Clovis. No part of this sum is to be charged against my grandson Clovis as a part of his distributive share in my estate. If, for any reason, my grandson Clovis does not exhaust said sum, the balance so unexpended shall be converted to my general estate. My executor is directed to pay either directly to my grandson Clovis or to such person as he may determine such reasonable amount for each year's expenses, as he deems fit provided said payment shall not, in the aggregate, exceed the amount of $5,000, inclusive of the amount charged by me against his educational fund, prior to my death.

Item 4. I will and bequeath to my son Marvin Pearce one-half of the remainder of my estate, both personal and real. I will and bequeath to my grandson Clovis one-fourth of my estate left after paying the bequest herein made to my grandson Jim, Jr., and the educational fund provided for my grandson Clovis, and in addition to said one-fourth, I will and bequeath to my grandson Clovis $5,000 to be charged against the interest of my grandson Joe, as herein provided. My executor may pay this $5,000 to Clovis upon his reaching the age of 21 years, if, in his judgment, his habits are good, and his judgment sufficient to handle said sum of money. If he thinks it is best for the said Clovis, on account of his habits, to retain said money until he is 25 years of age, he is authorized to do so. I will and bequeath to my grandson Joe one-fourth of my estate left after deducting the special bequests made to my grandson Jim, Jr., and Clovis Pearce's educational fund. There is also to be deducted from the one-fourth interest of my grandson Joe the sum of $5,000 which is hereinafter bequeathed to my grandson Clovis. It is the purpose and intention of this item that my grandson Clovis, in addition to the educational sum herein provided, shall have $5,000 more, to be deduced from the share of my grandson Joe.

Item 5. In the event of the death of my grandson Joe, without issue born to him, before the settlement of my estate, I will and bequeath the interest in my estate hereby willed to him, to my grandson Clovis. In the event of the death of my grandson Clovis, without issue born to him before the settlement of my estate, I will and bequeath the interest willed and bequeathed to him herein to my son Marvin.

Item 6. I will and direct that my executors hereinafter named and appointed take charge of my entire estate, real, personal and of whatever nature, and reduce the same to cash in such a way, and in such quantity, and on such terms, and at such a time or times, as he in his sound discretion may think to be to the best interest of my estate.

Item 7. Authorizing the sale and exchange of land and the purchase of other land, in the sound discretion of the executor.

8. Authorizing the executor to sell any property in any way as seems to him best, and to execute deeds and other contracts.

Item 9. Exempting the executor from making reports to courts, and to do the things herein willed, without the order or direction of any court.

10. Exempting from bond.

11. My executor is hereby directed and required to keep the part of the estate of my grandson Clovis together, until he is 25 years old, and my grandson Joe's part of the estate together until he is 25 years old. After such bequests as hereinbefore stated in this, my last will and testament, have been made.

12. Directing the executor to handle Clovis and Joe Pearce's part of the estate mentioned at the age of 25, should either Clovis or Joe become incompetent from insanity, or any other cause, and that they have such a part of their estate from time to time as may be necessary, for their comfortable sustenance.

13. Appointing Marvin Pearce executor, and in case of his incompetency, appointing Largus M. Pearce to act as executor for my grandsons Clovis and Joe.

14. Fixing compensation of executor on all receipts and all disbursements.

E.B. & K.V. Fire, of Hamilton, and A.F. Fite and W.C. Davis, both of Jasper, for appellant.

Cabaniss & Bowie and Geo. E. Bush, all of Birmingham, for appellees.

THOMAS J.

The appellant, Marvin Pearce, as executor and as a legatee and devisee under the will of James P. Pearce, deceased, asks a construction of this will.

The averments of the bill as to the ages of the minor grandsons of the testator, who are made beneficiaries, are: That Jim Pearce, Jr., was over the age of 14 and under the age of 21; that Clovis Pearce was 17 years of age; and that Joe Pearce was 10 years of age on March 7, 1916, when the amendment to the bill was filed. The date of the will was February 11, 1913. Letters testamentary to plaintiff thereunder were issued March 30, 1915, said will having been theretofore, to wit, on March 29, 1915, duly proved in the probate court of Marion county. The estate is large and complicated. A construction of the will is necessary, not only for the guidance of the personal representative, but to determine the respective beneficiaries.

The manifest scheme of the testator must be gathered from the whole instrument, his intent being the primary rule of its interpretation. Dickson v. Dickson, 178 Ala. 117, 59 So. 58; O'Connell v. O'Connell, 72 So. 81. Any apparently conflicting clauses should be reconciled so as to make each operative. We have recently collected the authorities and reaffirmed some of the cardinal rules of testamentary construction, in Ralls, Adm'r, v. Johnson, 75 South. ----. It will not be necessary to repeat them here. The intention of the testator was to make disposition of a large estate, consisting of personal, real, and mixed properties, between his son, Marvin, who was of full age, and his minor grandsons, Joe, Clovis and Jim Pearce, Jr.

No question can arise in the course of legal inquiry, perhaps, that is more doubtful in its nature, or less referable to fixed rules, than whether the words of a devise or bequest constitute a vested or a contingent estate. Code 1907, §§ 3398-3401. "Estate" is a word capable of the greatest extension, and comprehends every species of property, real and personal. It describes both the corpus and the extent of the interest. Deering v. Tucker, 55 Me. 284; Hunter v. Husted, Busb. Eq. 141; Godfrey v. Humphrey, 18 Pick. (Mass.) 539, 29 Am.Dec. 621. A testator has the right to dispose of his entire estate with such restrictions and limitations, not repugnant to established law, as he sees fit. Code 1907, §§ 3416, 3417; Broadway Nat. Bank v. Adams, 133 Mass. 170, 43 Am.Rep. 504. The law favors the construction by which the estate is regarded as vested rather than contingent, or by which it will become vested at the earliest moment; and this time is usually at the death of the testator. In Duffield's Case, 1 D. & C. 311, the Chief Justice states, as the rule for the guidance of that court, that:

"All estates are to be holden to be vested, except estates in the devise of which a condition precedent is so clearly expressed that the courts cannot treat them as vested without deciding in direct opposition to the terms of the will."

This ancient rule has been generally applied when the intention of the testator is obscure or doubtful, and has no application when the intention to create a contingent legacy or devise is clear. In Phinizy v. Foster, 90 Ala. 262, 7 So. 836, the pivotal question was whether the estate in remainder created by the will vested at the death of the testator or was contingent. The distinguishing characteristics of the two estates were thus defined:

"A remainder is said to be vested, when the estate passes out of the grantor at the creation of the particular estate, and vests in the grantee during its continuance, or eo instanti that it determines--when a present interest passes to a certain and definite person, to be enjoyed in futuro; and it is said to be contingent, when the estate is limited, either to a dubious and uncertain person, or upon the happening of a dubious or uncertain event--uncertainty of the right of enjoyment, as distinguished from the uncertainty of possession."

In Duncan v. De Yampert, 182 Ala. 528, 62 So. 673, it is declared that the intent to postpone the vesting of an estate must be clear, and not arise from mere inference or construction. Crawford v. Engram, 153 Ala. 420, 45 So. 584. This rule is based on that announced in Doe v. Considine, 6 Wall. 476, 18 L.Ed. 869, to the effect that:

"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."

There is a class of cases in which remainders are regarded as vested, though all who may take are not ascertained, or in being, and cannot be, until the happening of some future event; as where there is a devise of a remainder to a...