Phinizy v. Foster

• Citation: 7 So. 836,90 Ala. 262
• Parties: PHINIZY ET AL. v. FOSTER.
• Decision Date: 21 May 1890
• Court: Supreme Court of Alabama

7 So. 836

90 Ala. 262

PHINIZY ET AL. v. FOSTER.

Supreme Court of Alabama

May 21, 1890

Appeal from chancery court, Lawrence county; THOMAS COBBS Chancellor.

Ward & Betts, for appellants.

W P. Chitwood and E. H. Foster, for appellee.

CLOPTON J.

The sixth clause of the will of Samuel Watkins, who died in 1835 reads as follows: "In the event of my son Edgar dying without issue living at his death, I desire his portion, with the accumulations, to be divided equally among the children of Paul J. Watkins and my daughter Elmira; and, in the event of my daughter Elmira dying without issue living at her death, I desire the estate left to her and her children, together with the accumulations, to be equally divided among all my grandchildren and great-grandchildren. But great-grandchildren whose parents are living, and able to take under this will, not included in this bequest." At the time of the testator's death, Paul J. Watkins had five children living, three of whom died prior to the death of Edgar Watkins, who died in 1887 without leaving issue living. The bill, which is filed by appellee, one of the children of Paul J. Watkins who survived Edgar Watkins, brings the foregoing clause of the will for construction, and seeks to have ascertained and determined who are the persons entitled to share in the distribution of his portion of the estate,-whether all the children living at the time of the death of the testator, or only those who were living at the time of Edgar's death.

Admitting the uncertainty of the happening of the event upon which they were to come into possession of the property, appellants contend that the children living at the death of testator are the persons ascertained by the will to take when the contingency happened, and thus became invested with a present right of a future contingent enjoyment-a possibility coupled with an interest transmissible by descent,-and which entitled the real and personal representatives of those who died during the continuance of Edgar's life to participate in the distribution when the period of distribution arrived. Two rules are invoked in support of this construction,-the first, that a will speaks from the death of the testator; and the second, that the law favors vested estates.

For most purposes the will is regarded as speaking from the death of the testator, especially in reference to classes of persons subject to fluctuation by increase or diminution in number, which is generally understood to apply to persons answering the description at the time of the testator's death. In a gift to a tenant for life, remainder to his children or to the children of a third person, those living at the death of the testator take vested remainders, subject, it may be, to open and let in any after-born children. It is also an acknowledged rule that the law inclines to regard estates as vested, rather than contingent. BEST, L. Ch. J., states as the established rule for the guidance of the court: "That all estates are to be holden to be vested except estates in the devises of which a condition precedent to the vesting is so clearly expressed that the courts cannot treat them as vested without deciding in direct opposition to the terms of the will." Duffield v. Duffield, 1 Dow & C. 311. The rule is generally applied when the intention of the testator is obscure and doubtful. It has no application when the intention to create contingent legacies or devises is clear. In respect to each of the rules the intention of the testator, as shown by the words employed by him, must control.

The pivotal question is whether the estate in remainder, created by the will, vested at the death of the testator, or was it contingent? The distinguishing characteristics are: A remainder is said to be vested when the estate passes out of the grantor at the...