Powell v. Pearson

• Decision Date: 18 December 1930
• Docket Number: 1 Div. 611.
• Citation: 131 So. 571,222 Ala. 199
• Parties: POWELL ET AL. v. PEARSON ET AL.
• Court: Alabama Supreme Court

131 So. 571

222 Ala. 199

POWELL ET AL. v. PEARSON ET AL.

1 Div. 611.

Supreme Court of Alabama

December 18, 1930

Appeal from Circuit Court, Mobile County; Alex T. Howard, Judge.

Bill by Minnie Macartney Pearson against Oliver H. Powell, church wardens and vestry of Christ Church, and others, to sell lands for division and to ascertain the respective interests of the parties, with a cross-bill by respondent last named. From a decree overruling demurrers to the original bill and cross-bill, respondents other than respondent last named appeal.

Affirmed.

Pillans Cowley & Gresham, Inge, Stallworth & Inge, and Stevens McCorvey, McLeod, Goode & Turner, all of Mobile, for appellants Powell and Staples.

Smith &amp Johnston, of Mobile, for appellants Lewis T. Rutland and others.

Harry T. Smith & Caffey and Thornton & Frazer, all of Mobile, for appellees.

BOULDIN J.

The bill was filed by Minnie Macartney Pearson for the sale of certain real estate in Mobile for division among tenants in common, and, as incident thereto, the determination of the title and interests of the several claimants, some of whom were brought in by amendment.

Without incumbering our decision with a detailed statement of the interests claimed by the several parties and how derived, it is sufficient to say they all depend on the construction of two wills.

One of these is the will of Isabella H. Emanuel, deceased. This will is set out in full on the former appeal in this cause, where the same was construed by the full court. Powell v. Pearson, 220 Ala. 247, 125 So. 39.

The property her involved was devised by the testatrix to her son Edward Emanuel under the terms of the eighth paragraph of the will as modified by the codicil.

In an earlier decision, Rutland v. Emanuel, 202 Ala. 269, 80 So. 107, this court had declared that Edward Emanuel and his surviving wife took successive life estates; that the power of appointment by will conferred on him by his mother's will failed because the condition for its exercise had never arisen.

The question now at issue is whether the reversion after the death of the surviving wife was left undisposed of and passed by descent on the death of his mother to her heirs at law, or passed under the eleventh paragraph, the residuary clause of her will, to her children living at her death?

The decision of the majority on former appeal is well expressed in the sole headnote to the decision, 220 Ala. 247, and in the words of the opinion, page 260, 125 So. 39, 50, adopted from the decision of the trial court, viz.: "'That the fee in said property was not devised by the will, but remained in the testatrix, and at her death in 1890 passed to her then heirs at law, under the law of Alabama."'

We are asked to reconsider this announcement.

The briefs of counsel, showing much research, have been carefully considered.

We undertake here no review and analysis of authorities to determine whether the rule is stated too broadly in Johnson v. Holifield, 82 Ala. 126, 2 So. 753, saying: "Where a specific devise of real property is not valid and effectual, either from incapacity of the devisee to take, or from a lapse by his death during the life-time of the testator, or from the non-happening of some event or contingency on which the devise takes effect, the estate so undisposed of descends to the heir at law, notwithstanding there may be a residuary devise."

All admit that, where the property is specifically devised in such manner as to indicate the testator has therein made a final disposition so far as he intends to make disposition of same, it is not within a general residuary clause limited to property not specifically devised, although by subsequent events it may happen that the devise fail and the property comes back into the estate. Van Kleeck v. Reformed Dutch Church, 6 Paige (N. Y.) 600.

This is but to say the intention of the testator gathered from the will as a whole shall be given effect, if lawful.

The entire structure of Mrs. Emanuel's will shows a division of her estate among the natural objects of her bounty, viz. three living daughters, the children of two deceased daughters, and one son, Edward Emanuel.

The limitations and trusts attending the devise to the son are in the nature of safeguards.

What the testatrix desired should become of this property after the termination of the life estates is indicated by the class named as appointees in these words: "But if he should die leaving neither a wife, nor child or children, then it is my will that all of said property shall go to his sister or sisters, nephew or nephews, niece or nieces, as he may will or direct, forever."

The appointees are not limited to sisters living at the mother's death, nor to their descendants, to the exclusion of descendants of his sisters then deceased. To the contrary, her son was given entire freedom to choose between them all so long as he confined himself within the natural objects of his bounty, his heirs at law, and at the same time the heirs of the testatrix.

The general scheme of division running through the will suggests no purpose to favor daughters then living over the children of her deceased daughters, as regards property specially devised to the son for his life, then to his wife for life, with remainder to his children, if any, and with power of appointment by will if neither wife nor child survives him.

Without further discussion, we adhere to the views expressed on former opinion to the effect that the will made no other or further disposition of this property; that the contingent remainder limited to his unborn child or children having failed for want of one to take, and the power of appointment having never come into operation and effect, the reversion must be disposed of as in cases of intestacy.

The second will, whose construction is involved, is that of Mary E. Barnewall, a daughter and one of the devisees of Mrs. Emanuel.

The inquiry involved here is: Did the undivided reversionary interest of Mrs. Barnewall in the property in suit, coming to her as heir at law on the death of her mother, pass under the residuary clause of Mrs. Barnewall's will to Christ Church in Mobile, or did she die intestate as to this property?

Mrs. Barnewall's will was considered by this court in 1895. Barnewall v. Murrell, 108 Ala. 366, 18 So. 831.

That case involved a contest of the will. The major question was whether the instrument, composed of numerous sheets, with many blank spaces, and changes made in the original draft, constituted a completed unified testamentary act, or was an incomplete document, not intended to be final, but subject to change after execution, if not actually so changed.

In a full carefully reasoned opinion by Chief Justice Brickell, the structure and contents of the entire will were quite fully set forth on pages 371-374 of 108 Ala., 18 So. 831, 834.

Adopting that outline of the will as a whole, we here set out only the provisions whose construction is immediately involved as they appear in the present record, viz.:

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