Robertson v. Robertson

• Decision Date: 14 January 1915
• Docket Number: 953
• Citation: Robertson v. Robertson, 191 Ala. 297, 68 So. 52 (Ala. 1915)
• Parties: ROBERTSON et al. v. ROBERTSON et al.
• Court: Alabama Supreme Court

68 So. 52

191 Ala. 297

ROBERTSON et al. v. ROBERTSON et al.

No. 953

Supreme Court of Alabama

January 14, 1915

Appeal from Tuscaloosa County Court; H.B. Foster, Judge.

Bill by J.W. Robertson and others against W.E. Robertson and others. From a decree for complainants, defendants appeal. Affirmed.

McKinley McQueen, Aldridge & Snow, of Tuscaloosa, for appellants.

Vande Graaff & Sprott, of Tuscaloosa, for appellees.

McCLELLAN J.

James H. Robertson died intestate in 1896. At the time of his death he possessed a landed estate of about 1,300 acres. There survived him a widow and several children of that union. There has not been any administration upon his estate, any indebtedness of his estate being discharged, and the personal estate being divided by agreement to which the widow and heirs and distributees were parties. On December 7, 1896, all of the heirs, except W.E. Robertson, of James H. Robertson deceased, executed to their coheir, W.E. Robertson, a conveyance particularly describing the lands owned by the decedent at the time of his death, but this conveyance contained this language immediately preceding the description of the land:

"Reserving however, and excepting from the operation of this deed, any and all reversionary interest which the said parties or their heirs may or shall have in and to such part of said lands as shall be selected as dower or in lieu of dower by Mrs. S.A. Robertson, widow of the said James H Robertson, deceased, to wit"

--then describing the lands mentioned. It also contained this language immediately after the covenant of warranty:

"The operation of this covenant of warranty shall not, however, extend to such part of said above described lands as may be selected or set apart unto the said Mrs. S.A. Robertson as dower or lieu of dower."

On February 17, 1897, the same grantors executed to the same grantee another deed exactly like that of December 7, 1896, except that immediately after the description of the land this language was inserted:

"It being the intention of this conveyance to convey all the lands owned by said Robertson in Tuscaloosa county, at the time of his death."

The widow was not a party to either of these conveyances. She then resided and has ever since resided on the land owned by her husband at his death.

This bill is filed by the grantor heirs in these conveyances for the purpose of having the widow's dower assigned to her. Unless concluded by these conveyances, or by effects resulting from them, the theory of the bill is unassailable. Callahan v. Nelson, 128 Ala. 671, 29 So. 555.

The death of the intestate having occurred in 1896, the statutes touching the dower rights and prescribing methods for their assertion and effectuation in the Code of 1896 are applicable and govern. The statute of limitation in respect of the assignment of dower as it now prevails is not applicable. Code 1907, § 3837; Vaughn v. Vaughn, 180 Ala. 212, 60 So. 872. Under the statutes then (1896) of force and effect, the only limitation fixed was that of three years in cases where the husband had, in his lifetime, aliened the land. Elyton Land Co. v. Denny, 96 Ala. 336, 11 So. 218. The widow's right to have dower assigned has been long held to exist and to be available to her for 20 years after the husband's death. Elyton Land Co. v. Denny, supra; Barksdale v. Garret, 64 Ala. 277, 38 Am.Rep. 6. The period of prescription then afforded the conclusive time measure for a bar. We know of no compelling reason why the heir's right, under the law prevailing before the Code of 1907, to have dower assigned should be concluded by a different period. So, if the heirs (complainants) are not otherwise concluded, the mere lapse of time, even near 18 years, after the intestate's death will not effect to deny them the right to invoke equity to action in the premises. It is manifest that, if the before quoted expression of intention by the grantors, an expression that marks the only difference between the conveyances of February 17, 1897, and of December 7, 1896, had been omitted from the conveyance of later date, there would have been afforded no basis for a contention that conflicting expressions of intent appeared in the conveyance of February 17, 1897. But the interposition of this expression of intent creates a status calling for construction.

It is the rule, grounded upon the presumption that conflicting expressions of intent are not purposely made in deeds, that the judicial duty is, if possible, to reconcile any repugnancy that appears; and, if that cannot be done, the former clause must control to the exclusion of the latter clause instituting the repugnancy. Wallace v. Hodges, 160 Ala. 276, 281, 49 So. 312; Petty v. Booth, 19 Ala. 633.

From the face of the conveyance of 1897, or from the faces of the two deeds of 1896 and 1897, it is entirely clear that the grantors entertained a particular intent to not grant the ultimate, reversionary interest in that part of a much longer area, which might be assigned to the widow for her dower. This intent was not only plainly expressed, but the additional precaution was taken to exempt the subject of the exception from the warranty made in the conveyances. With this intent made...