Rutland v. Emanuel

• Decision Date: 27 June 1918
• Docket Number: 1 Div. 21
• Citation: 80 So. 107,202 Ala. 269
• Parties: RUTLAND et al. v. EMANUEL.
• Court: Alabama Supreme Court

80 So. 107

202 Ala. 269

RUTLAND et al. v. EMANUEL.

1 Div. 21

Supreme Court of Alabama

June 27, 1918

Rehearing Denied Nov. 14, 1918

Appeal from Circuit Court, Mobile County; Saffold Berney, Judge.

Statutory ejectment by Hunter Rutland and others against Mamie R Emanuel. Judgment for defendant, and plaintiffs appeal. Affirmed.

Gregory L. & H.H. Smith, of Mobile, for appellants.

Stevens McCorvey & McLeod, John E. Mitchell, and Harry T. Smith &amp Caffey, all of Mobile, for appellee.

McCLELLAN J.

Statutory ejectment, instituted by Hunter Rutland and others (appellants) to recover business property in Mobile. Mamie R. Emanuel (appellee) is the sole defendant. The parties on both sides claim under the will of Isabella H. Emanuel, deceased. The plaintiffs are grandchildren of Isabella H. Emanuel, children of her deceased daughters. The defendant is the widow of Edward Emanuel, a son of Isabella H. Emanuel, deceased. On the 6th of June, 1890, Isabella H. Emanuel executed the will in question, along with a "codicil" of even date qualifying the eighth item of the will. Isabella H. Emanuel died on September 27, 1890, owning the fee in the property sought to be recovered in this action of statutory ejectment. At the time Isabella H. Emanuel executed this will (June 6, 1890), her son Edward Emanuel was unmarried. In 1894 he married the defendant, approximately four years after the execution by his mother of her will and after her death the same year. Edward died on the 15th day of February, 1917, leaving a widow, the defendant, and no children. No children were ever born to him.

The will of Isabella H. Emanuel, deceased, contains twelve items, and the addenda to the eighth item, called a "codicil." That particular item, with the "codicil," will be later reproduced in this opinion. The other items may be outlined as follows: Item 1 provided executors of the will. Item 2 stipulated for the payment of debts. Item 3 made devises and bequests to the testatrix's daughter, Mary E. Barnwell. Item 4 gave real property to the children of testatrix's deceased daughter (testatrix's grandchildren) Eveline E. Murrell "who may be [might be] living at my [testatrix's] death"; and, also, "to Effie and Mary B. Murrell" [grandchildren of testatrix] certain real property "while they remain unmarried"; and providing further in that item as follows:

"Should one marry, then this store to belong to the one unmarried. Should both marry, then the three sisters, Effie and Mary B. Murrell, and Isabel Shields to possess such store jointly. I also give to Effie and Mary Murrell" certain other real property.

Items 5 and 9 make provisions for the children of testatrix's deceased daughter, Fanny E. Rutland, devising certain real property, in item 5, and, in item 9, certain stocks in lieu of the real property described in item 5 if testatrix effected a sale of the real estate. Item 6 devised certain real property to testatrix's daughter Josephine E. McCartney. Item 7 made bequests and devises to testatrix's daughter Mrs. Virginia E. Mitchell. Item 8 will be quoted below. Item 10 devised to testatrix's daughters Mesdames Barnwell, Mitchell, and McCartney certain business property in Mobile. Item 11 reads:

"All of the remainder of my property, real, personal or mixed, of which I may die possessed, and which I have not herein specifically devised, it is my will, and I give and bequeath to all of my children living at my death, share and share alike."

Item 12 reads:

"I hereby specially enjoin upon each and all my heirs that they shall not use, any of them, my bequests to them for the payment of any debts whatsoever contracted by them previous to the inheritance by them of their bequests."

The particular item under review, the eighth, along with the "codicil," are in these words: "Eighth. I give, devise and bequeath to my son Edward Emanuel the following described property in the city of Mobile, state of Alabama, to wit, the store on west side of Commerce St. now occupied by Michael & Lyons, situated between St. Michael & St. Louis Sts., being No. 39; also the building on the N.E. Cor. of Royal & St. Michael Sts., in which I have heretofore owned a three-quarters interest with the estate of Lyon, but have purchased the remaining one-fourth interest from the estate of Lyon, and now give the entire property to my son Edward, said building now occupied by various parties; also the two-story brick building situated on the N.E. Cor. of Govt. & Royal Sts., now occupied by Kosminsky, also a small building No. 47 South Royal, next to Kosminsky's also the three-story brick building No. 10 St. Michael St.

"To have hold and enjoy by my said son Edward Emanuel the use, benefits and profits of said property above bequeathed, during and for his life only; but if he should die leaving a wife AND child or children, then his said wife shall have and enjoy the use, benefits and profits of the same; during her life only, and at her death it shall go to my son's child or children, if any be living, forever, but if my son should die. But if he should die leaving neither a wife, nor child nor children, then it is my will that all of said property shall go to his sister or sisters, nephew, or nephews, niece or nieces, as he may will or direct, forever.

"It is my will and I so direct that my executors herein named, or whomsoever may become my executor or administrator shall become, and they are hereby constituted and appointed trustee or trustees for all of this property herein devised and bequeathed to my said son Edward Emanuel; and it shall be his or their duty to manage, control, and take charge of said property, renting or leasing it, and the income and profits, after paying the taxes, insurance and other necessary expenses incident to the management of said property, to be by them paid to my said son Edward as my son shall wish or require.

"It is my will, and I so direct, that none of said property shall be sold during the life of my son, unless said trustees shall concur with my son in the opinion that a sale would be manifestly to the interest or advantage of my son; and in the event such a sale should be made, it is my will that said trustee or trustees shall join in the conveyance to the purchaser and that the purchase money shall be paid to the trustee or trustees, and the amount so realized shall be by them in property to be held and owned by my son upon the same terms and conditions in every respect, both as to his estate therein, and as to the mode and manner of inheritance and descent, and as to whom it shall go after his death, as the property herein devised is held by and for him.

"And it is my will that unless the terms and conditions of such sale above set forth are faithfully complied with, then such sale or sales shall be void.

"Codicil.

"It is my desire that the provisions that my executors shall manage and control, rent and lease the property given to my son Edward shall be stricken out; and instead thereof; that my said son shall himself have the control and management of his own property; except that the provisions in regard to the sale of said property and its disposition after his death, shall remain in full force as provided above."

The controlling question submitted by this appeal is whether the trial court was justified in deciding that the defendant had a life estate in the property; and the correctness of this conclusion depends upon the propriety of substituting the word "or" for the word "and," in the above-quoted eighth item of the will, which copulative we have put (ante) in capitals in the sentence reading, "but if he shall die leaving a wife and child or children. ***" In the circumstances here presented, the only appropriate function of this court is to ascertain and give effect to the intention of the testatrix; provided, of course, that is consistent with public policy and is not offensive to the laws. In performing this function, it is permissible, in cases justifying the process, to read "and" as "or," and vice versa. Drawing the conclusion from general observation, it has become accepted that in both speech and writing people are careless, at least in degree, in the use of the words "or" and "and." In Harris v. Parker, 41 Ala. 615, 616, this court, through the pen of one of its ablest judges long since expressed this idea by approvingly quoting this statement from Jarman on Wills:

"It is obvious that these words [i.e., or; and] are often used, orally, without a due regard to their respective import; and it would not be difficult to adduce instances of the inaccuracy, even in written compositions of some note. It is not surprising, therefore, that this inaccuracy should have found its way into wills."

After citing numerous authorities having reference to the particular judicial function of the substitutionary rendering of these words in writings wherein one of them occurs, this court then said:

"We make so extended a citation of authorities upon this subject, because they prove and exemplify the looseness and confusion which prevail in the use of the conjunctions 'or' and 'and,' and the freedom with which the courts adopt the meaning consistent with reason and intention." (Italics supplied.)

Among the citations referred to in Harris v. Parker, supra, is Janney v. Spring, 7 Gill (Md.) 197, 48 Am.Dec. 557, to which Judge Freeman has appended an exhaustive note. The learned annotators of Anno. Cases have also made valuable contributions to this general subject in Ann.Cas.1913A, 1058-1064; 19 Ann.Cas. 922-925; Ann.Cas.1917C, 306-308.

This court, in Harris v. Parker, supra, adopted for analogous use the thought and rule on the subject that had found high approval in texts and cases involving the construction of wills. If this court...