Reynolds v. Love

• Decision Date: 21 January 1915
• Docket Number: 141
• Citation: 191 Ala. 218,68 So. 27
• Parties: REYNOLDS et al. v. LOVE et al.
• Court: Alabama Supreme Court

68 So. 27

191 Ala. 218

REYNOLDS et al. v. LOVE et al.

No. 141

Supreme Court of Alabama

January 21, 1915

Rehearing Denied Feb. 11, 1915

Appeal from Chancery Court, Autauga County; W.W. Whiteside Chancellor.

Bill by A.C. Love and others against W.W. Reynolds and others to sell land for division and account for the rents and profits arising from use and occupation of said land. From a decree for complainants, defendants appeal. Affirmed in part, and reversed and remanded in part.

The following are the items of the will of Mary Lanier referred to in the opinion:

Item 2: I give and devise unto friends Clement G. Lanier George Body, Albert J. Pickett, and John B. Rump, the survivor or survivors of them, their heirs and assigns, 160 acres of land lying east of the 80 purchased by Clarissa Dixon of Lindsay H. Davis, and adjoining land owned by Richard Morton. In trust, however, to permit and suffer my daughter Clarissa (wife of S.H.N. Dixon) notwithstanding coverture to receive all the rents, issues and profits thereof for her own use for and during her natural life, and after her decease, in trust for the use and benefit of my granddaughter Caroline La Fayette (wife of Addison C. Love) notwithstanding coverture, to receive all the rents, income profits, etc., for her own use, for and during her natural life, and from and after the death of said Caroline La Fayette in trust for her issue, etc., and their issue, etc and should the said Caroline La Fayette depart this life before the said Clarissa, I desire that the said Caroline La Fayette may have the power of appointing such of her children as she may think proper as beneficiaries of the said trust estate.

Item 3 names the same trustees for a different 80 of land--

in trust for Caroline La Fayette (wife of Addison C. Love), notwithstanding coverture, to receive all the rents, issues, and profits, etc., for and during her natural life from said land, and from and after death in trust as before for the use and benefit of her issue, etc., their issue, etc., provided always that the said children or some of them shall reside on the said premises, and in case the said Caroline La Fayette, or some of her issue or their issue, will not continue to reside on said premises or some part thereof, it is my will that the said trust estate may revert back to some or any of my heirs who may be willing to reside permanently thereon, my object being to secure said lands as a homestead for the benefit of my said children, their issue, etc.

Item 4 is like item 2, except the beneficiary named is Mary Ann Elizabeth, wife of William G. Love, granddaughter of testatrix.

Gipson & Booth and P.E. Alexander, all of Prattville, for appellants.

W.A. Gunter, of Montgomery, for appellees.

ANDERSON C.J.

The main question for our consideration is whether or not Caroline La Fayette Love took an absolute estate to the land left her under clauses 2 and 3 of the will (which will be set out by the reporter), or only a life estate, with remainder over to the class to which the complainants belong.

In order to determine this question, we must first ascertain whether the will is to be construed under the law existing when it was made (1849) or under the law as it was when the testatrix died (1861).

It is practically conceded by appellees' counsel, and properly so, that the remainder is not good under the rule in "Shelley's Case," which was abolished by section 1304 of the Code of 1852 (section 3403 of the Code of 1907). On the other hand, if the Code of 1852 should be made applicable to wills made previous thereto, in the event, of course, that the testatrix did not die until after the adoption of same, these complainants took a vested remainder in the land. Kumpe v. Coons, 63 Ala. 448; Smaw v. Young, 109 Ala. 528, 20 So. 370; Thorington v. Hall, 111 Ala. 323, 21 So. 335, 56 Am.St.Rep. 54. The general rule seems to be, as between laws in force at different times in the same jurisdiction, that the law existing at the time the will was executed may be referred to in determining the testator's intention; but the operative effect of the will and the rights of the parties thereunder are to be determined by the law in force when the rights of the parties accrued, and this ordinarily is the law existing at the time of the testator's death, as against a law passed thereafter, or as against a law existing when the will was made, unless a contrary intent appears in the will. A law which is prospective merely does not extend to a will executed before the law goes into operation, although the testator does not die until afterwards. 40 Cyc. 1385. While the foregoing seems to be the general rule, the authorities are not entirely harmonious on the subject; some applying the law existing when the testator died; others the law as it was when the will was made. See note to the case of Barker v. Hinton, 62 W.Va. 639, 59 S.E. 614, 13 Ann.Cas. 1150. The conflict in the decisions arises largely, not as to what the general rule is, but in the construction of subsequent statutes, and in determining whether or not they were so worded as to be deemed prospective or retrospective. Our own court has heretofore quoted the general rule as laid down by Mr. Cooley in his work on Constitutional Limitations, as follows:

"A statute should have a prospective operation, unless its terms show clearly a legislative intention that it should operate retrospectively." Ex parte Buckley, 53 Ala. 54.

But, while quoting the foregoing rule, this court used the following language:

"But this strictness of construction is not to be applied to all retroactive statutes. In commenting on this language, taken from Cooley, this court used this language 'The statutes excluded from judicial favor, and subjected to this strictness of judicial construction--statutes which may properly be denominated retrospective--are such as impair vested rights acquired under existing laws, or create a new obligation, impose a new duty, or attach a new disability, in respect to transactions or considerations already past. Such statutes are offensive to the principles of sound and just legislation, and it is of these the authorities to which we have been referred use the term "odious," and other epithets expressive of judicial opprobrium. There are other statutes which, when operating retrospectively, have not incurred judicial condemnation, and to which a liberal construction, for the consummation of the just and beneficial purposes in view, has been fully accorded. Such statutes are intended to remedy a mischief, promote public justice, correct innocent mistakes into which parties may have fallen, cure irregularities, or give effect to the acts and contracts of individuals fairly done and made. These are remedial statutes, conducive alike to individuals and public good.' Ex parte Buckley, 53 Ala. 54, 55. The question is, at last: 'Do they establish substantial justice and subvert injustice?' Endlich on Int. of St. §§ 273, 277, 278.

"In Hoffman v. Hoffman, 26 Ala. 545, it was said: 'Whenever a statute is leveled against an abuse, or in furtherance of an

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