Rosenau v. Childress

• Court: Alabama Supreme Court
• Writing for the Court: HEAD, J.
• Citation: Rosenau v. Childress, 111 Ala. 214, 20 So. 95 (Ala. 1896)
• Decision Date: 19 May 1896
• Parties: ROSENAU ET AL. v. CHILDRESS ET AL.

20 So. 95

111 Ala. 214

ROSENAU ET AL. v. CHILDRESS ET AL.

Supreme Court of Alabama

May 19, 1896

Appeal from circuit court, Tuskaloosa county; S. H. Sprott, Judge.

Action of ejectment by H. C. Childress and others against H. Rosenau and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

This was a statutory action in the nature of ejectment, instituted on September 9, 1893, by the appellees against the appellants, for the recovery of a tract of land specifically described in the complaint. The cause was tried by the court without the intervention of a jury upon an agreed statement of facts. This agreed statement of facts recited that the plaintiffs were the grandchildren and great-grandchildren of James Childress, deceased; that Mrs. Susan W. Read, who was Susan W. Childress, a daughter of the testator, James Childress, outlived all the other children of the testator that the defendants claimed through mesne conveyances from Susan W. Read, and also claimed title by adverse possession by the statute of limitation, and by right of prescription that the defendants and those under whom they claim went into possession under their respective conveyances in 1867; that Susan W. Read never had a child or children, and died April 20, 1892; that her husband, J. B. Read, survives her. The will of James Childress, deceased, was copied in the agreed statement of facts, and in it he bequeathed to his daughter Susan W. Childress, who was afterwards Mrs. Susan W. Read, certain land in which the property involved in this controversy was included. The limitation of this bequest, as contained in said will, is copied in the opinion. The last clause of the will of James Childress was as follows: "In making the above will and testament, it is my object and intention to secure to the families of my children, as well as to themselves, the use and enjoyment of my property, and not to leave it liable to be sold or taken away from them in any manner or means whatever. Their children and families are to have a subsisting title and claim to the use of the property jointly with themselves, and such is the construction I wish placed upon my will." Upon the submission of the cause to the court in accordance with the agreement on file, judgment was rendered in favor of the plaintiffs, and there was an assessment of the proven rental value of the property involved in the controversy as damages. From this judgment the defendants appeal, and assign its rendition as error. As stated in the opinion, the only question to be considered on the present appeal was the construction of the will of James Childress in its bequest to Mrs. Susan W. Read.

A. B. McEachin, J. M. Martin, and G. W. Van Hoose, for appellants.

A. M. Tunstall, Foster & Oliver, and Jones & Mayfield, for appellees.

HEAD J.

We think the devise and bequest to testator's daughter Susan W. Childress, who subsequently married Read, plainly manifests its meaning. By it the property mentioned, real and personal (the latter not being in controversy here), was given to Mrs. Read, "to be held and enjoyed by her during her natural life, and after her death to be equally divided among her children, if she shall leave children, and, if not, then to be equally divided among my other children, to be held by them in the manner before described." The provision created an estate in Mrs. Read for her life, with remainder to the testator's other children, contingent upon the death of the life tenant without children her surviving. Campbell v. Noble (Ala.) 19 So. 28; May v. Ritchie, 65 Ala. 602. If she had...