Perdue v. Roberts

• Decision Date: 05 June 1975
• Citation: 314 So.2d 280,294 Ala. 194
• Parties: Flora Lee PERDUE v. John Henry ROBERTS, Jr., et al. SC 975.
• Court: Alabama Supreme Court

Page 280

314 So.2d 280

294 Ala. 194

Flora Lee PERDUE v. John Henry ROBERTS, Jr., et al.

SC 975.

Supreme Court of Alabama.

June 5, 1975.

Richard H. Gill, Montgomery, for appellant.

L. Y. Sadler, Jr., Camden, for John Henry Roberts, Jr.

JONES, Justice.

Although arising in the context of a sale for division, the issue presented by this appeal calls into question the trial Court's construction of a will.

At the time of his death in 1950, E. B. Perdue owned in Wilcox County a 360-acre farm and an undivided 1/2 interest in an adjoining tract of 393 acres. His brother, C. C. Perdue, owned the other undivided 1/2 interest in the 393 acres. When C. C. Perdue died, his undivided 1/2 interest devolved to his heirs at law, one of whom sold an undivided 1/12 interest to one of the appellees, John Henry Roberts, Jr. Roberts brought the bill of sale for division and named Flora Lee Perdue, the appellant and widow of E. B. Perdue, along with the heirs and successors of C. C. Perdue and two leasehold tenants as parties respondents.

Consequently, in order for the trial Court to determine the interest of each party, particularly that of Flora Lee Perdue, a construction of E. B. Perdue's will was necessary. Articles Three and Four of the will are as follows:

'THREE

'I give, devise and bequeath to my beloved wife, Flora Lee Perdue, if she be living with me as my wife at the time of my death, a life estate in my farm or plantation located about six (6) miles from the Town or Village of Furman, in Wilcox County, Alabama, comprising 560 acres more or less, together with a life estate in my home and residence in the Town or Village of Furman in Wilcox County, Alabama, to have, to hold and to use during the terms of her natural life; and upon her death, the remainder estate in said real property, I give, devise and bequeath to my heirs at law then surviving me, they to take said remainder estate in the same proportion, shares and parts as though I had died intestate with respect thereto. If during my wife's life tenancy of said plantation of farm approximately six (6) miles from Furman in Wilcox County, Alabama, she is in need of funds, I hereby empower and authorize her to sell and convey as much as forty (40) acres of said farm or plantation during any one (1) year and by deed of conveyance, convey to the purchaser thereof the absolute and full title thereto, the proceeds to be used by her to meet her said necessitites and needs; and, thereafter, from year to year, if her needs or necessities require it, she may likewise convey during any one (1) year forty (40) additional acres; and, her deed of conveyance shall be conclusive evidence of her needs or necessities.

'FOUR

'All the rest, residue and remainder of my estate, real, personal and mixed, I give, devise, and bequeath to my beloved wife, Flora Lee Perdue, if she be living with me as my wife at the time of my death.'

The initial issue raised by the previous excerpts of the will is that since E. B. Perdue owned a 360-acre farm in fee and an undivided 1/2 interest in an additional adjoining 393-acre tract, what interests did he attempt to pass to his wife, Flora Lee? That is to say, did both the farm (360 acres) and his 1/2 interest (in the remaining 393 acres) pass under Article Three, leaving her a life estate in each, or did the 1/2 interest pass to her under Article Four, the residuary clause, in fee?

Mrs. Perdue contends that her husband intended under Article Three to leave her a life estate in the 360-acre farm with an unconditional right to sell up to 40 acres a year should she, in her own opinion, decide that she needed additional income; and that he intended under Article Four to devise to her in fee his 1/2 undivided interest in the 393-acre tract. Alternatively, she contends that if she does have only a life estate in the 1/2 interest in the 393-acre tract, she should be allowed the monetary equivalent of her interest annually therein from the sales price.

On a stipulation of facts, the trial Court decreed that both tracts passed under Article Three, giving Mrs. Perdue a life estate in each tract of land. As to the sale of her 1/2 interest in the 393-acre tract, the Court was also of the opinion, 'that Mrs. Perdue is entitled to the interest for her lifetime on said proceeds, inasmuch as the tract of land sold was a one-half interest for life' and that 'Mrs. Perdue has the further right upon appropriate showing of need or necessity to receive from one-half of the net proceeds of the sale such additional funds as shall not exceed the equivalency of forty acres per year.' The foregoing is assigned as error.

Because none of the evidence was taken orally before the trial Judge rendering the decree, there is no presumption in favor of his findings from the evidence, and on appeal we must sit in judgment on the evidence. Sheehan v. Liberty Mutual Fire Ins. Co., 288 Ala. 137, 258 So.2d 719 (1972); Machen v. Wilder, 283 Ala. 205, 215 So.2d 282 (1968). Accordingly, the facts being virtually without dispute, we will now proceed to apply the law to the facts in order to determine whether the trial Court's interpretation of the latent ambiguity in the will was in accord with E. B. Perdue's intent at the time he drew up his will.

We disagree with the trial Court's interpretation. We reverse and remand for further proceedings in connection with the sale for division not inconsistent with this opinion.

We hold that Mrs. Perdue received a life estate in the 360-acre farm under Article Three, and a fee simple title in the undivided 1/2 interest in the 393-acre tract.

A summary of the basic rules of construction which guides our consideration follows:

Where an ambiguity exists in a will, the courts should construe the will so as to give effect to the intent of the testator, and should seek to reconcile all the provisions so as to give effect to all provisions and to form a harmonious whole. Such reconciliation must also...