Pierce v. Fulmer

• Decision Date: 02 February 1910
• Citation: 51 So. 728,165 Ala. 344
• Parties: PIERCE ET AL. v. FULMER.
• Court: Alabama Supreme Court

51 So. 728

165 Ala. 344

PIERCE ET AL. v. FULMER.

Supreme Court of Alabama

February 2, 1910

Appeal from Probate Court, Coosa County; J. A. Crawford, Judge.

Judicial accounting by J. G. Fulmer, as administrator de bonis non with the will annexed, of the estate of Hezekiah Allen deceased. From a judgment overruling objections of L. C Pierce and others to the accounting, the distributees appeal. Reversed and remanded.

It appears from the statement of account that there were several children of a child born after the death of the testator, and that each of these were allowed their part of a child's share in the distribution. It further appeared that the administrator was allowed a credit of $100, the amount of rent collected for the year 1906, and that this credit was allowed on a debt due him from the life tenant. He was also allowed credit for bills for medical service and medicine for the life tenant, and funeral expenses for the life tenant. Another item contested was the allowance of a credit for tomb stone placed over the grave of the testator. The other facts sufficiently appear in the opinion.

S. J Darby, for appellants.

J. M Chilton and Felix L. Smith, for appellee.

ANDERSON J.

The testator, Hezekiah Allen, after bequeathing his property to his wife during her life or widowhood, provided further, by section 3 of the will, as follows: "After the death or marriage of my said wife Sarah Allen, I desire that all my estate both real, personal or other description on hand at the death or marriage be sold and equally divided among my children share and share alike." It is evident that the will bequeathed a life estate to the wife, subject to her marriage, with a remainder to all of the testator's children, as a class, who were living when the testator died. It was not restricted or limited to any of the children by name or to those who survived the marriage or death of the life tenant, but referred to all of the children then living. It matters not that some of them died before the termination of the life estate, for section 6166, Code 1907, expressly vests their interest in their descendants, and prevents a lapsing of the bequest to them. The present will is unlike the ones considered in the cases of Smaw v. Young, 109 Ala. 528, 20 So. 370, and Thorington v. Hall et al., 111 Ala. 323-337, 21 So. 335, 56 Am. St. Rep. 54, as the residue after the expiration of the life estate was there restricted to the survivor at the time of the death of the life tenant, and here we have no such restriction. We are of the opinion that distribution was properly made so as to include the descendants of those children of the testator who were living when he died, but who died before the termination of the life estate, and who were given such share as their deceased parent would be entitled to if living.

We do not think, however, that the will applied to the children of the testator's children who died before the will was made so as to include them, under the terms of section 3435, Code 1907, as there was no power of appointment, but a mere duty of distribution. Russell v. Wright, 98 Ala.

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