Pitts v. Campbell

• Decision Date: 17 May 1911
• Citation: 55 So. 500,173 Ala. 604
• Parties: PITTS v. CAMPBELL ET AL.
• Court: Alabama Supreme Court

55 So. 500

173 Ala. 604

PITTS v. CAMPBELL ET AL.

Supreme Court of Alabama

May 17, 1911

Appeal from Law and Equity Court, Madison County; Tancred Betts Judge.

Bill by J. C. Goodrich and others, as executors of the last will and testament of J. N. Hairston, deceased, to construe the will and remove the settlement from the probate to the chancery court. From a decree favorable to Mattie Campbell and others of the heirs, Pearl Pitts, a legatee appeals. Affirmed.

Walker & Spragins, for appellant.

Parker & Parker and Paul Speake, for appellees.

SOMERVILLE J.

The bill is filed by the executors of the last will and testament of J. N. Hairston, deceased, and seeks to remove the settlement of his estate from the probate court of Madison county into the law and equity court. It prays for a construction of certain clauses of the will, and that two legacies, in the sum of $5,000 each, the one to appellant and the other to her sister, be contingently charged on particular lands described in the will as the testator's farm, and devised to the widow of the testator for her life with remainder over to his nieces generally, including the appellees.

The testator died February 28, 1908, leaving about $37,000 of personal estate, his farm homestead, worth about $20,000, and several town lots, worth about $400. In September, 1905, and August, 1906, he had sold parcels of real estate for an aggregate of $6,300. From these facts it is inferable that at the date of the execution of the will, July 1, 1905, his personal estate amounted to about $30,000, and his real estate, other than the farm, to about $6,500. The chancellor held that the farm property was specifically devised in item 2 of the will, and was not chargeable with the said legacies and denied the prayer that they be sold for their satisfaction.

The material items of the will, so far as this inquiry is concerned, are as follows:

"Second. I give and bequeath to my beloved wife, Jincy Rebecca Hairston, my farm about two miles east of Huntsville, in Madison county, state of Alabama, to have and to hold during her natural life, provided she pays the taxes on the land when the taxes are due and payable, and if she fails to pay said taxes and the land is sold to pay said taxes, then the land shall revert back to my estate and be equally divided between my nieces living at the time of said sale, if they will redeem in the time required by law. If my wife keeps the taxes paid up, at the time of her death the said lands shall be divided equally among my nieces living at the death of my wife. I also give and bequeath to my beloved wife all the household and kitchen furniture, all of the farming tools, and work stock on the place, and all provisions and feed of whatever nature, either for man or beast, that is on the place, also the milk cows.

"Third. I give and bequeath to my two nieces, Jim Ruth Pitts and Pearl Pitts, the daughters of my sister, Pina Pitts, $5,000 each, to be paid to them in cash and to be paid out of my estate, either real or personal, except the lands left to my wife during her life. This $10,000 shall be over and above any of my other nieces and shall not be charged to Jim Ruth and Pearl in a division of my estate, but they shall share equally with my other nieces in the rest of my estate after the $10,000 has been paid, as it is my intention to give Jim Ruth Pitts $5,000 more than either of my other nieces, and to give Pearl Pitts $5,000 more than either of my other nieces.

"Fourth. All the rest and residue of my estate, real, personal and mixed, of which I shall die seised and possessed, or to which I shall be entitled at my decease, I give, devise and bequeath to be equally divided between all of my nieces living at the time of my death."

The widow, in the exercise of her statutory right, dissented from the will and was accorded dower and homestead out of the real estate, as well as all of the personal estate of $37,000, as allowed to her by the statutes, leaving no personal estate and practically no real estate, except the farm, out of which the legacies could be satisfied.

The authorities hold to three propositions of vital importance in the construction of wills:

1. Where the performance of a condition...