Reynolds v. Reynolds

• Decision Date: 14 December 1922
• Docket Number: 7 Div. 307-307A.
• Citation: 95 So. 180,208 Ala. 674
• Parties: REYNOLDS v. REYNOLDS ET AL.
• Court: Alabama Supreme Court

95 So. 180

208 Ala. 674

REYNOLDS v. REYNOLDS ET AL.

7 Div. 307-307A.

Supreme Court of Alabama

December 14, 1922

Rehearing Denied Jan. 25, 1923.

Appeal from Circuit Court, Talladega County; A. P. Agee, Judge.

Bill by Julia G. Reynolds against Walker Reynolds, Thos. J. Reynolds Gibson Reynolds, Jessie A. Finley, Amelia Harris, Wm. T Harris, and Willie Higgins (mortgagee of Walker Reynolds) with cross-bill by Amelia T. Harris and Wm. T. Harris. From a decree dismissing the original bill and the cross-bill, the original complainant and the cross-complainants appeal. Reversed, rendered, and remanded on direct appeal; affirmed on cross-appeal.

Gardner and Miller, JJ., dissenting.

Knox Acker, Dixon & Sims, of Talladega, for appellants.

Rushton & Crenshaw, of Montgomery, for appellees.

MILLER J.

Mrs. Julia G. Reynolds, appellant, files this bill of complaint in equity against Walker Reynolds and others, to sell for division among the joint owners certain real estate therein described, on the ground that it cannot be equitably partitioned among them.

The bill alleges complainant owns an undivided one-sixth interest in it, and the respondents own the other five-sixth interest, stating the exact interest of each respondent in the land. Two of the respondents file answer in the nature of a cross-bill. They are Amelia Harris and William T. Harris. They admit complainant owns one-sixth interest, and aver they each own an undivided one-twelfth interest in the real estate, and request that the property be sold for division among the joint owners. The respondents, who are alleged in the original and cross bill to be joint owners with complainant and the cross-respondents in the real estate, answer and deny that complainant and the two cross-respondents own the interest in the real estate as alleged. They aver and claim that the complainant, Mrs. Julia G. Reynolds, and the cross-respondents, Amelia Harris and William T. Harris, own no interest in or title to this real estate.

On final hearing on pleading and proof the court held that neither complainant nor the cross-respondents were entitled to the relief sought, and the original bill and cross-bill were dismissed by a decree of the court and complainant was taxed with three-fourths and the cross-respondents with one-fourth of the costs of the court. This appeal is prosecuted from that decree. The decree dismissing the original bill and taxing complainant with three-fourths of the cost is assigned as error by complainant, Mrs. Julia G. Reynolds, and the decree dismissing the cross-bill and taxing them with one-fourth of the cost is assigned as error by Amelia Harris and William T. Harris.

The bill must aver and the proof must show that the complainant is a joint owner of or tenant in common in the land sought to be sold; the former, the averment, to give the equity court jurisdiction of the cause, and the latter, the proof, to give the court the right to grant relief. The same principle is applicable to the allegations of this cross-bill, and the proof to maintain it. Section 5231, Code 1907; Roy v. Abraham, 207 Ala. 400, 92 So. 792.

The complainant in the original bill and the respondents in the cross-bill aver facts making them joint owners or tenants in common in the land with the other owners thereof named as defendants. This gave the court jurisdiction of the original and cross cause of action; but the court held by its decree that the proof did not sustain the averments of either the original or cross bill; that neither the complainant nor the cross-respondents owned any interest in or title to the land. The pleading put in issue the title of complainant and the cross-respondents to any interest in the real estate; and it could be settled and determined in this cause. Section 5231, Code 1907; Roy v. Abraham, 207 Ala. 400, 92 So. 792.

All of the alleged joint owners or tenants in common claim title to their respective interests in the land through the will of Thomas H. Reynolds, deceased, and the complainant claims title to her interest also under a deed or written instrument. The complainant's title depends on the construction of the will and the deed; and the cross-respondents' title depends on the construction of the will. The deed or instrument was signed by the sons and daughter of Thomas H. Reynolds, who were remembered in his will, to Jordan F. Reynolds, a son, who was disinherited by the will.

Thomas H. Reynolds died on October 29, 1892. He left a will. It was duly probated. There survived him, his widow, Mrs. Elizabeth A. Reynolds, and his six children, viz. Mrs. Jessie A. Finley, Thomas J. Reynolds, Walker Reynolds, Henry P. Reynolds, Gibson Reynolds, and Jordan F. Reynolds. The third paragraph of the will, on the construction of which depends the title of Mrs. Amelia Harris and William T. Harris, the cross-respondents, to an interest in the land, reads as follows:

"Thirdly-It is my will and desire that all my personal property shall belong absolutely to my beloved wife, Mrs. Elizabeth A. Reynolds, to use, control, sell and dispose of as she may wish; and it is my will and desire that all my real estate shall belong to my beloved wife, Mrs. Elizabeth A. Reynolds, for and during her natural life, and upon her death that the same shall be equally divided between these dear children Mrs. Jessie A. Finley, Thos. J. Reynolds, Walker Reynolds, Henry P. Reynolds and Gibson Reynolds and should any of the above-named children die childless then in that event his or her share in my estate shall be divided among those living of the above-named children."

This will gives to the widow all the personal property, absolutely. It gives to her (Mrs. Reynolds, the widow) all of his real estate for and during her natural life. By the will the real estate belongs to her during her life. The will directed upon her death, at the falling in of the life estate, upon the death of the widow, that the real estate shall be equally divided between the five children named; "and should any of the above-named children die childless, then in that event, his or her share in my estate shall be divided among those living of the above-named children." Did the testator intend to state, should any of the above-named children die childless before the death of the testator, or did he intend to state, should any of the above-named children die childless before the death of the life tenant, or did he intend to state, should any of the above-named children die childless at any time after the death of testator, "then in that event, his or her share in my estate should be divided among those living of the above-named children"? Which did he intend of these three alternatives?

All of the six children and the wife were living at the death of the testator. The division of the real estate was to be made upon the death of the life tenant, the widow. It was to be divided among the five children named. The will then also provided:

"Should any of the above-named children die childless, then in that event, his or her share in my estate shall be divided among those living of the above-named children."

The will does not state, should any of the above-named children die childless before the death of the testator, or before the death of my wife, or before the falling in of the life estate, or before the division of the real estate, "then in that event, his or her share in my estate shall be divided among those living of the above-named children." None of the children had any share in his estate until after his death. His death and the will fixed the share of the children in his estate. So he evidently was not referring to those children who might not survive him and die childless. All of the children were living at his death. It does say, "should any of the above-named children die childless." When? At any time after his death seems to be the only natural and the real intended meaning of the testator. Should any of the five "children die childless, then, in that event"-in the event any one dies childless at any time after the death of the testator-his or her share of any estate shall be divided among those living of the five named children. This interpretation of the will appears more clearly to be the intent and desire of the testator, when we consider the next paragraph of the will, which disinherits one of the six children because large advancements had already been made to him, and the testator stated: "It is my will and desire that he shall not receive any more of my property." This paragraph or section of the will follows the other, and reads:

"Fourthly-Having made large advancements already to my son Jordan F. Reynolds, it is my will and desire that he shall not receive any more of my property."

Any other interpretation of the will than the foregoing would do violence to the intent and expressed desire of the testator. It would have permitted this son Jordan F. Reynolds, contrary to the intent of the testator and contrary to the express will and desire of the testator, to inherit from a sister or brother a part of his father's property should any of them die childless. So the testator evidently intended, "should any of the above-named children die childless" at any time after the death of the testator, "then his or her share of my estate shall be divided among those living of the above-named children." The testator was endeavoring by the will to so devise his property that his son Jordan could secure no more of it. The will should be construed to express and declare the intent of the testator.

This will created a life estate and remainder interest in the land. The life estate vested in the widow during her natural life; the remainder interest vested equally in the five children named; but it...