Reid v. Armistead

• Decision Date: 21 December 1933
• Docket Number: 1 Div. 797.
• Citation: 151 So. 874,228 Ala. 75
• Parties: REID ET AL. v ARMISTEAD ET AL.
• Court: Alabama Supreme Court

151 So. 874

228 Ala. 75

REID ET AL. v ARMISTEAD ET AL.

1 Div. 797.

Supreme Court of Alabama

December 21, 1933

Rehearing Denied Jan. 18, 1934.

Appeal from Circuit Court, Clarke County; T. J. Bedsole, Judge.

Bill by Emma Armistead and others against Edgar Reid, Edna Ruth Deas and others, to construe a will and to sell land for division. From a decree for complainants, respondent Deas alone appeals.

Reversed and remanded.

A. S Johnson, of Thomasville, for appellant.

Adams &amp Gillmore, of Grove Hill, for appellees.

THOMAS Justice.

The right of construction of this will was declared in Reid et al. v. Armistead et al., 224 Ala. 43, 138 So. 537.

The lower court not having construed the will on appeal from a decree overruling the demurrer to the bill for construction and the affirmance thereof, the will was not construed on first appeal. Carroll v. Richardson, 87 Ala. 605, 6 So. 342; Ashurst et al. v. Ashurst, 175 Ala. 667, 57 So. 442; Powell et al. v. Labry et al., 207 Ala. 117, 92 So. 266; Schowalter et al. v. Schowalter, 221 Ala. 364, 128 So. 458; Id., 217 Ala. 418, 116 So. 116. The will was thereafter construed by the circuit court, and is before us for consideration, presented on last appeal by a bill seeking the sale of lands between joint tenants. Upshaw v. Eubank et al. (Ala. Sup.) 151 So. 837; Schowalter et al. v. Schowalter, supra; Hinson v. Naugher et al., 207 Ala. 592, 93 So. 560; Gunter v. Townsend et al., 202 Ala. 160, 79 So. 644; Nabors et al. v. Woolsey, 174 Ala. 289, 56 So. 533; Ashurst et al. v. Ashurst, supra.

The will and codicil to be construed are in the following language, the paragraphs and italics being supplied for the purpose of a more convenient reference:

"I, James W. Armistead, of Clarke County, Alabama, make and publish this as my last will and testament.

"First,--I desire that all my debts shall be paid.

"Second,--As my wife has a separate estate sufficient to keep her from want, I make no provision for her, except that I desire that she in connection and together with any of my daughters who may be single shall remain on and occupy my homestead so long as she may live, being supported so long as she remains there, out of the income of my property.

"Third,--I willand bequeath all of my property of whatsoever description to my daughters, Eugenie, Willie, Emma and Myrtie, Lillie and May, except that Lillie and May shall take no interest until the other daughters shall either marry or die.

"Fourth,--It is my will and desire that none of my real estate shall be sold so long as any of my daughters remain single, and that those who remain single shall have the use of and income from my property, so long as they may live to the exclusion of those who shall marry.

"Fifth,--Should any of the above named devisees die without issue then her share shall descend to the others herein named. But should any of them die leaving issue then her interest shall descend to her children.

"Sixth,--I hereby nominate and appoint my daughters, Willie and Emma as executrices of this will, but bond is expressly waived.

"In witness whereof, I have hereunto set my hand and seal this 5th day of November, 1897."

On January 21, 1905, said testator executed a codicil which is as follows:

"I, J. W. Armistead, being of sound mind and disposing memory, hereby make and declare this to be my codicil to my last will and testament, dated November 5th, 1897, and attested by Wm. D. Dunn and W. W. Daffin as subscribing witnesses.

"Item 1. I hereby revoke item Four of my said last will and testament, above referred to and in lieu thereof I hereby give, devise and bequeath to my daughter, Lillian Lee Farrior, who has been deserted by her husband and any of my daughters who may be single at my death, the use and income from my property in equal shares, to the exclusion of those who shall marry. This right to the use and income from my property shall be enjoyed by them as long as they may live.

"It is my will and desire that none of my real estate shall be sold, so long as any of my daughters remain single or Lillian Lee Farrior remains a widow.

"Given under my hand and seal this the 21 day of January, 1905."

The appellees filed their bill to have this will construed, and to determine the present status of the title to the lands which were owned by the said J. W. Armistead at the time of his death; claiming that a fee-simple title to the lands vested at testator's death, under the terms of said will, in the six daughters named, excepting only that the right of the said Lillie and May to share in the possession of said lands, or the use thereof, was deferred until the other daughters had either married or died. Complainants further contend that the title thus vested in said daughters being a fee-simple title, the restrictions against alienation of said lands incorporated in said will and the codicil thereto are unreasonable and void, being inconsistent with the enjoyment of the rights incident to a fee-simple estate. The further contention of complainants in said bill is that, if they are not seized of a fee-simple title in said lands, they are entitled during their lifetimes to such income as an estate of this size and character should be made to produce, and pray that said property be sold, and the proceeds of sale invested in other property, or in interest-bearing securities in such manner as to produce some income. Complainants further allege that said property cannot be equitably divided or partitioned without a sale thereof; they pray for sale among joint tenants.

A careful consideration of this will and codicil is to be looked to for the disclocure of the testator's intent. And this prevails when ascertained within the rules. Ralls v. Johnson, 200 Ala. 178, 75 So. 926. If that intent cannot be ascertained, by reason of the existence of ambiguity within the rule (Wiley et al. v. Murphree, Ex'r, etc. [Ala. Sup.] 151 So. 869), the court should endeavor to put itself in the testator's place to a right understanding of his surroundings and circumstances, and, from such a position of advantage, read and expound the will in accord with the testator's true intention. Steele v. Crute et al., 208 Ala. 2, 93 So. 694; Myrick v. Williamson et al., 190 Ala. 485, 67 So. 273; Castleberry v. Stringer, 176 Ala. 250, 255, 57 So. 849; Fowkles et al. v. Clay et al., 205 Ala. 523, 88 So. 651; Achelis v. Musgrove et al., 212 Ala. 47, 101 So. 670; Rutland et al. v. Emanuel, 202 Ala. 269, 272, 80 So. 107; Schowalter et al. v. Schowalter, 221 Ala. 364, 128 So. 458; Id., 217 Ala. 418, 116 So. 116; Pearce v. Pearce et al., 199 Ala. 491, 497, 501, 74 So. 952. In Smith v. Bell, 6 Pet. 68, 75, 8 L.Ed. 322, 325, the general rules are thus stated by Mr. Chief Justice Marshall:

"The first and great rule in the exposition of wills, to which all other rules must bend, is, that the intention of the testator, expressed in his will, shall prevail, provided it be consistent with the rules of law. [Davie v. Stevens] 1 Doug. 322; [Perrin v. Blake] 1 W. Bl. 672. This principle is generally asserted in the construction of every testamentary disposition. It is emphatically the will of the person who makes it, and is defined to be 'the legal declaration of a man's intentions, which he wills to be performed after his death.' 2 Bl. Com. 499. These intentions are to be collected from his words, and ought to be carried into effect, if they be consistent with law.

"In the construction of ambiguous expressions, the situation of the parties may very properly be taken into view. The ties which connect the testator with his legatees, the affection subsisting between them, the motives which may reasonably be supposed to operate with him, and to influence him in the disposition of his property, are all entitled to consideration, in expounding doubtful words, and ascertaining the meaning in which the testator used them."

When the will and codicil are construed within the four corners thereof, no doubt can be entertained but that testator's intent was that his lands be not sold so long as one of his daughters remained single, and that this limitation or futurity is a material part and substance of and inheres in the gift; and this is stated in no uncertain terms or language that is carried through the whole of the two instruments. Bingham v. Sumner, 206 Ala. 266 and page 273, 89 So. 479, for many authorities; Crawford et al. v. Carlisle, 206 Ala. 379, 385, 89 So. 565; Henderson et al. v. Henderson et al., 210 Ala. 73 97 So. 353. To illustrate: In the second paragraph of the will the testator specifically provides that his widow, "in connection and together with any of my daughters who may be single, shall remain on and occupy my homestead so long as she may live." In the third paragraph the bequest is to the daughters named, "except that Lillie and May shall take no interest until the other daughters [theretofore named in the same paragraph] shall either marry or die." In the fourth paragraph is the provision: "That none of my real estate shall be sold so long as any of my daughters remain single, and that those who remain single shall have the use of and income from my property, so long as they may live to the exclusion of those who shall marry." This fourth paragraph is substituted by the provisions in the codicil where testator recites the fact that Lillian Lee Farrior has been deserted by her husband, and he gives, devises, and bequeaths to her, and to "any of my daughters who may be single at my death, the use and income from my property in equal shares, to the exclusion of those who shall marry." And in the same paragraph (item 1 of the codicil) the testator adds: "This right to the use and income from my property shall be enjoyed by...