Pitts v. Howard

• Decision Date: 02 November 1922
• Docket Number: 2 Div. 787.
• Citation: 208 Ala. 380,94 So. 495
• Parties: PITTS ET AL. v. HOWARD ET AL.
• Court: Alabama Supreme Court

94 So. 495

208 Ala. 380

PITTS ET AL. v. HOWARD ET AL.

2 Div. 787.

Supreme Court of Alabama

November 2, 1922

Appeal from Circuit Court, Dallas County; S. F. Hobbs, Judge.

Bill by Arthur M. Pitts, administrator, and Annie L. Barnes, against Harriet Van Hook Howard and others. From the decree complainants appeal. Reversed and remanded.

Arthur M. Pitts, of Selma, and Foster, Verner & Rice, of Tuscaloosa for appellants.

Harwood McKinley, McQueen & Aldridge, of Eutaw, and M. E. Frohlich of Selma, for appellees.

McCLELLAN J.

Having the advantage of an inspection of the will itself, the court below made these observations with respect to its structure:

"And it appearing to the satisfaction of the court from the evidence in this cause that the will of Robert Isaac Van Hook was written by testator himself without legal aid or advice; that the same is written in the handwriting of testator; that there is little and insufficient punctuation therein; that there are therein numerous erasures, corrections, at least two interlineations, and one omission of the final syllable of a word; that at least one piece of testator's real estate was omitted by him from the schedule of same in his will; that the whole is labored and anything but clear and concise. ***"

The construction of the instrument is undertaken in the light of the crude methods employed to express the testator's intent.

The testator's design was to dispose of his entire estate, real and personal. After devising to his wife-should she survive him, as was the event-a life estate in all his real property, he directed, without condition or qualification, the sale for cash, after the death of his wife, of all his real estate, to the end that the proceeds of such sales should be distributed to two classes, viz. nephews and nieces of his blood and nephews and nieces of her blood. The direction to sell the remainder in the real estate, after the death of his wife, was absolute and without contingency, operating, at the death of the testator, to effect the equitable conversion of such remainder into personalty, into money, to be so regarded as of that time (testator's death), investing these respective classes with the stipulated proportionate interests in the aggregate proceeds of the sales of the real estate ( Allen v. Watts, 98 Ala. 384, 394, 11 So. 646), subject to be apportioned to individuals by the exercise by Mrs. Van Hook in her lifetime of the limited power of apportionment committed to her. This limited power of apportionment, viz. to fix the proportions, not to determine the bequest itself, among individuals within the description of the class or classes, was not exercised by Mrs. Van Hook; but this omission of the repository of the power did not operate to qualify or to annul the bequest of this converted realty into personalty, the failure to exert the power leaving the distribution to be made in equal individual proportions among those within the classes described, viz. the nephews and nieces of the testator living at his death being entitled to equal individual shares in two-thirds of the proceeds of the sales and the nephews and nieces of Mrs. Van Hook living at the death of testator being entitled to equal individual shares in one-third of such proceeds. Code, § 3432; Connell v. Cole, 89 Ala. 381, 384, 8 So. 72. The respective interests in the personalty, the money, having become vested as of the date of testator's death (Allen v. Watts, supra), the interest of such nephews and nieces (of either class) as died after testator's decease were distributable, in the absence of testamentary disposal, to their next of kin.

It results from these considerations, especially the authoritative expression of principles set forth in Allen v. Watts, supra, that the testator did not devise any estate in his real estate to the two classes of nephews and nieces described in the will; and hence the decree (paragraphs 3 and 4, particularly) is affected with error in the aspects it affirmed the investment of these classes with a remainder in the real estate which was directed to be sold after the death of the life tenant. The equitable conversion wrought by the will characterized the substance of testator's bounty to the classes described as money, not real estate.

In the decree the court declared the title of the widow to be absolute in the personal assets of testator's estate other, of course, than the real estate in which she was...