Rice v. Park, 8 Div. 253.

• Citation: 223 Ala. 317,135 So. 472
• Decision Date: 26 March 1931
• Docket Number: 8 Div. 253.
• Parties: RICE v. PARK.
• Court: Supreme Court of Alabama

135 So. 472

223 Ala. 317

RICE v. PARK.

8 Div. 253.

Supreme Court of Alabama

March 26, 1931

Rehearing Denied June 25, 1931.

Appeal from Circuit Court, Lauderdale County; J. Fred Johnson, Jr. Judge.

Bill to quiet title to real estate by Robert Wells and Betty Ann Wells, by A. J. Park, as guardian, D. F. Wells and Virginia Ellis Hatcher against Edward T. Rice, as administrator of the estate of Pryor Rice, deceased. From a decree for complainants, respondent appeals.

Affirmed.

GARDNER J., dissenting.

W. H Mitchell, of Florence, and Edward T. Rice, of Birmingham, for appellant.

Simpson & Simpson, of Florence, for appellees.

THOMAS J.

The bill was filed under the statute to quiet title. That pleading contained the required averments as to nonpendency of suits for land, that the complainants were in peaceable possession, etc., under the statute, § 9905, Code, and the decisions. Cooper v. Brown & Sons Lumber Co., 214 Ala. 400, 108 So. 20; Buchmann Abstract & Inv. Co. v Roberts, 213 Ala. 520, 105 So. 675; Burgin v. Hodge, 207 Ala. 315, 93 So. 27; Irwin v. Shoemaker, 205 Ala. 13, 88 So. 129; Davis v. Daniels, 204 Ala. 374, 85 So. 797; Gill v. More, 200 Ala. 511, 76 So. 453; Wood Lumber Co. v. Williams, 157 Ala. 73, 47 So. 202; Randle v. Daughdrill, 142 Ala. 490, 39 So. 162. The evidence of complainants is sufficient to establish the required possession to maintain such a bill under the statute.

The application of common judgment has evolved cardinal rules of construction of testamentary instruments. Steele v. Crute, 208 Ala. 2, 4, 93 So. 694. These certain cardinal rules of testamentary construction are well understood and need not be restated. Powell v. Pearson, 220 Ala. 247, 255, 125 So. 39; Hatcher v. Rice, 213 Ala. 676, 105 So. 881; Gunter v. Townsend, 202 Ala. 160, 164, 165, 79 So. 644; Ralls v. Johnson, 200 Ala. 178, 75 So. 926. It may be observed that a will is construed as a whole and within the four corners thereof, unless it contains an ambiguity within the rule of construction, then under its material circumstances. Schowalter's Case, 221 Ala. 364, 128 So. 458; First National Bank v. Sheehan, 220 Ala. 524, 126 So. 409; Steele v. Crute, supra; Achelis v. Musgrove, 212 Ala. 47, 101 So. 670; Fowlkes v. Clay, 205 Ala. 523, 88 So. 651; Blake v. Hawkins, 98 U.S. 315, 25 L.Ed. 139; Smith v. Bell, 6 Pet. 68, 8 L.Ed. 322.

The will of Mrs. Mattie B. Rice was construed in Hatcher v. Rice, 213 Ala. 676, 105 So. 881, 883, and there declared that the husband, Mr. S.D. Rice, had only a life estate, and it was observed from that record (it was not shown) that the power of appointment was not exercised. The latter observation is again presented for review under a more complete statement of facts and material circumstances that may be considered as to the intention to execute the power of appointment.

In Mrs. Rice's will it is provided, among other things, as follows:

" First: I give to my husband, Septimus Decimus Rice my storehouse on Court or any property that I own at the time of my death with all money I may have. ***"

" Third: At my husband's death all property of mine to go to my nieces V. E. Hatcher and E. I. Park, unless one of my husband's sons are (is) needy, in that case to go to that one, this to be left to my husband's judgment." (Italics supplied.)

The will of Mr. Rice contains words of devise and bequest as follows:

"Florence, Alabama. October 12, 1912.

"First: I give to my son, Pryor Rice, to have and to hold forever, my storehouse on Court Street, in Florence, the said storehouse being bounded on the south by the property of Mrs. Laura Frierson; on the north by the property of R. N. Harris, on the west by Court Street, fronting on said street twenty-two (22) feet and running back between parallel lines one hundred sixty-six (166) feet to an alley.

"Second: My stock in Rice Hardware Company, money and other property that I may own at my death I give and bequeath, share and share alike to my four sons, Pryor O., William C., Edward T., and Septimus H. Rice." (Italics supplied.)

This and other matters were not before the court or considered on appeal in Hatcher v. Rice, 213 Ala. 676, 105 So. 881.

The nature and method of proof in the construction of wills as to the power of disposition and the delegation of power of appointment, and in the execution of the power, should not be confused. Sections 6928, 6941, 6942, Code; Braley v. Spragins, 221 Ala. 150, 128 So. 149; Pierce v. Fulmer, 165 Ala. 344, 347, 51 So. 728; Byrne v. Marshall, 44 Ala. 355. The rights of testators to confer the power of appointment and delegate testamentary powers, within the recognized limitations, as affecting subsequent estates, have been the subject of frequent decisions. Braley v. Spragins, supra; Powell v. Pearson, 220 Ala. 247, 254, 125 So. 39; Rutland v. Emanuel, 202 Ala. 269, 273, 80 So. 107; Thorington v. Hall, 111 Ala. 323, 331, 21 So. 335, 56 Am. St. Rep. 54; Doe ex dem. Gosson v. Ladd, 77 Ala. 223, 224.

In the will of Mattie B. Rice the ambiguous clause was contained in the gift to the husband, as affected by the power of appointment, and another devise contained in a subsequent item held the life estate only in the husband with the devise of remainder subject to execution of power to contrary purport by the husband in the exercise of his judgment.

In the limitation of resort to extrinsic evidence-to show circumstances surrounding the testator at the time of the execution of the will-it is important of observation, that it is when there are latent ambiguities to be explained and construed in the ascertainment of testamentary intent and meaning of the whole will. Patch v. White, 117 U.S. 210, 6 S.Ct. 617, 710 29 L.Ed. 860, 864; Blagge v. Miles, 3 Fed. Cas. 567, No. 1479, 1 Story, 426, 4 Law Rep. 256; Clere's Case, 6 Coke, 18; 2 Page on Wills, §§ 1419, 1160, 1163, et seq.; 2 Thompson on Real Prop. 278; Schowalter v. Schowalter, 221 Ala. 364, 128 So. 458; City Bank & Trust Co. v. McCaa, 213 Ala. 579, 105 So. 669; Phillips v. Phillips, 213 Ala. 27, 104 So. 234; Hatcher v. Rice, supra; Achelis v. Musgrove, 212 Ala. 47, 101 So. 670; Steele v. Crute, 208 Ala. 2, 3, 93 So. 694; Fowlkes v. Clay, 205 Ala. 523, 88 So. 651; Dozier v. Dozier, 201 Ala. 174, 77 So. 700; Allen v. Scruggs, 190 Ala. 654, 67 So. 301; Baker v. Baker, 182 Ala. 194, 62 So. 284; De Bardelaben v. Dickson, 166 Ala. 59, 62, 51 So. 986; Lee v. Shivers, 70 Ala. 288; 1 Greenl. on Ev. §§ 287, 288; 1 Jarman on Wills (5th Ed. Bigelow) pp. 429, 430; 1 Story's Eq. Jur. § 181.

The manner, time, method, and persons by whom there may be an execution of the power of appointment under wills has been the subject of much discussion. 4 Kent's Comm. 328, et seq.; 3 Thompson on Real Prop. § 38, et seq.; 2 Washburn on R. P. § 685, et seq.; 2 Page on Wills, §§ 814, 1166, et seq.; 28 R. C. L. p. 233. In Blagge v. Miles, 3 Fed. Cas. pages 566, 567, No. 1,479, Justice Story said:

"Three classes of cases have been held to be sufficient demonstrations of an intended execution of a power: (1) Where there has been some reference in the will, or other instrument, to the power; (2) or a reference to the property, which is the subject, on which it is to be executed; (3) or, where the provision in the will or other instrument, executed by the donee of the power, would otherwise be ineffectual, or a mere nullity; in other words, it would have no operation, except as an execution of the power. Langham v. Nenny, 3 Ves. 467; Bennett v. Aburrow, 8 Ves. 609, 616. It seems unnecessary to refer at large to the cases, which establish these propositions. They will be found collected, generally, in Mr. Chance's Treatise on Powers (volume 2, c. 13, §§ 1591-1714), and in Sir Edward Sugden's Treatise on Powers (volume 1, c. 6, § 2, p. 257 etc.; Id. § 7, p. 373, etc.; Id. § 8, p. 430, etc.), and in the opinion of the court, delivered by Lord Chief Justice Best, in Doe v. Roake, 2 Bing. 497. *** There is no pretence to say, that, because no other cases have as yet occurred, there can be no others. That would, in fact, be to say, that the cases governed the general rule as to intention, and not the rule the cases. Lord Chief Justice Best has put these classes of cases upon the true ground. They are instances of the strong and unequivocal proof, required to establish the intention to execute the power; but they are not the only cases. Doe v. Roake, 2 Bing. 504. On the contrary, if a case of clear intention should arise, although not falling within the predicament of these classes, it must be held that the power is well executed."

And this subject has been well considered by this court. Gindrat v. Montgomery Gas-Light Co., 82 Ala. 603, 2 So. 327, 60 Am. Rep. 769; Gulf Red Cedar Lumber Co. v. O'Neal, 131 Ala. 117, 133, 30 So. 466, 90 Am. St. Rep. 22; Young v. Sheldon, Adm'r, 139 Ala. 444, 452, 36 So. 27, 101 Am. St. Rep. 44; Jones v. Morris, 61 Ala. 526; 49 C.J. 1283.

In Lee v. Simpson, 134 U.S. 572, 589, 10 S.Ct. 631, 637, 33 L.Ed. 1038, 1046, the subject is thus discussed:

"The question of the execution of a power is very fully discussed by Mr. Justice Story in Blagge v. Miles [Fed. Cas. No. 1479], 1 Story, 426. The rule laid down in that case is that if the donee of the power intends to execute it, and the mode be in other respects unexceptionable, that intention however manifested, whether directly or indirectly, positively, or by just implication, will make the execution valid and operative; that the intention to execute the power must be apparent and clear, so that the transaction is not fairly susceptible of any other interpretation, but, if it be doubtful, under all the circumstances, then that doubt will prevent it from being deemed an execution of the power; and...