Smaw v. Young

• Decision Date: 03 February 1896
• Citation: 20 So. 370,109 Ala. 528
• Parties: SMAW ET AL. v. YOUNG. [1]
• Court: Alabama Supreme Court

20 So. 370

109 Ala. 528

SMAW ET AL. v. YOUNG. ^[1]

Supreme Court of Alabama

February 3, 1896

Appeal from chancery court, Greene county; W. H. Tayloe, Chancellor.

Bill by William B. Young against William Smaw and others for partition. From a judgment for plaintiff, defendants appeal. Reversed.

H. M Judge, for appellant.

Thos Seay and James E. Webb, for appellee.

McCLELLAN J.

In June, 1855, Alexander McAlpine conveyed to Bryant Gulley the lands described in the bill, "to have and to hold the same unto him, the said Bryant Gulley, during his natural lifetime; and, in the event he leaves a wife when he dies his widow shall have use of the aforesaid property for four years from the death of her husband, or during her widowhood should the widow of the said Gulley die or marry before the expiration of the four years. So soon as the crop on hand shall be gathered, all of the aforesaid property shall be equally divided between the surviving children of my daughters, Jane F. Smaw and Sarah A. Smaw." Gulley subsequently married, and died in December, 1887, leaving a widow, who still survives, and who continued in possession of and to hold said land under said deed for the term of four years succeeding the death of her husband, as provided in the deed of Alexander McAlpine. Both the daughters of the grantor referred to in the deed, Jane F. and Sarah A. Smaw, had died before its execution. Jane F. Smaw left surviving her two children, William R. Smaw and Ellen Smaw, who subsequently intermarried with Thomas Seay; and Sarah A. Smaw also left two children, Mary Smaw and Alice Smaw. All these children of the grantor's "daughters, Jane F. Smaw and Sarah A. Smaw," were living at the time the deed from McAlpine to Gulley was executed. At the termination of the estate for years in the widow of Gulley, and also at the time of Gulley's death, Alice and Mary Smaw and Ellen Smaw-Seay were dead, leaving of said four children only one, William R. Smaw, surviving. Ellen Smaw-Seay left, surviving, her husband, Thomas Seay, and two children, Reuben Seay and Fannie Seay. Mary Smaw died in infancy in 1859, leaving as her only heir at law Alice Smaw, who subsequently intermarried with William B. Young, executed a last will devising all her estate to her said husband, and died in October, 1885. Her husband survived her, and files this bill for a partition of the land described in said deed to and among William R. Smaw, Thomas, Reuben, and Fannie Seay, in the right of Ellen Smaw-Seay, deceased, and himself, as the devisee of Alice Smaw-Young, in the right of said Alice and her sister, Mary Smaw; his claim being that he is entitled to one-half of the land, William R. Smaw to one-fourth, and Thomas Seay, for life, and Reuben and Fannie Seay, in remainder, to one-fourth. The chancellor granted the relief prayed, upon the theory that the four children of Jane F. and Sarah A. Smaw, all of whom were in life at the time the deed was executed, at once took vested remainders in the land, which passed, as to Ellen Smaw, into her husband and children on her death, as to Mary Smaw into her sister, Alice, at her death, and as to said Alice, having thus her own and her sister's original interests, into the complainant, Young, by the last will of his wife, the said Alice Smaw-Young.

The chancellor could not have reached a different conclusion upon the question whether the four children of Jane F. and Sarah A. Smaw took vested remainders in the land, with a due regard to the authorities of controlling force upon his actions. He was bound to hold the remainder vested by the former adjudications of this court. We will briefly refer to them. In Hunter v. Green, 22 Ala. 329, there was a devise and bequest in the first clause of a will to the testator's wife as follows: "That she may have a comfortable support and maintenance, I give her the tract of land on which I now live, together with all my property of every kind whatsoever that I may die possessed of, for her use during her natural life." A subsequent clause was as follows: "I give and bequeath to my niece Ann Finley, my negro boy Franklin, to her and her heirs forever, and also my negro girl Peggy, until she arrive at the age of twenty-five years, at which age she is to be emancipated." And it was held that Ann Finley took a vested remainder in the slaves bequeathed to her, limited upon the life estate of testator's widow, the court saying: "What, then, was the estate which Ann Finley took in this bequest at the death of the testator? Not a contingent remainder, as is contended by the defendant would be the case with this construction of the will, but a vested remainder,-an interest in her which would pass to her representatives at her death, and which she could alienate by bequest or conveyance. In speaking of the test as to whether a remainder is vested or contingent, Chancellor Kent says: 'It is the present capacity of taking effect in possession, if the possession were to become vacant, and not the certainty that the possession will become vacant, before the estate limited in remainder determines, that distinguishes a vested from a contingent remainder. When the event on which the preceding estate is limited must happen, and when it also may happen, before the expiration of the estate limited in remainder, that remainder is vested; as is the case of a lease to A. for life, remainder to B. during the life of A., the preceding estate determines on an event which must happen; and it may determine by forfeiture or surrender before the expiration of A.'s life, and the remainder is therefore vested. A remainder limited upon an estate tail is held to be vested, though it must be uncertain whether it will ever take place.' 4 Kent, Comm. 203. Again, in defining a contingent remainder, the same author says: 'It is not the uncertainty of enjoyment in the future, but the uncertainty of the right of that enjoyment, which marks the difference between a vested and contingent interest.' Id. 206. This is conclusive to show that the actual estate which Ann Finley took was a vested, and not a contingent, remainder." In the case of Kumpe v. Coons, 63 Ala. 448, there was a devise to Mrs. Barclay for life, with remainder over to her children living at the time of her death, the language of the will being: "Subject to said charge for the support of my mother-in-law, I devise said lands to Mildred A. Barclay during her natural life. *** I devise said lands, after her death, to the children of the said Mildred A. Barclay then living, and the descendants of any deceased child or children;" and this was held to create a vested remainder in the children of Mildred A. Barclay who were living at the time of the death, not of Mrs. Barclay, but of the testator; the court, by Brickell, C.J., saying: "The gift over to the then living children of Mrs. Barclay on the termination of her estate for life is a vested, as distinguished from a contingent, remainder. 'It is,' says Chancellor Kent, 'the present capacity of taking effect in possession, if the possession were to become vacant, and not the certainty that the possession will become vacant before the estate limited in remainder determines, that distinguishes a vested from a contingent remainder.' The death of Mrs. Barclay could happen before the death of any of her children; and, if it did, the gift in remainder would immediately vest in possession. 4 Kent, 232. Her children, consequently, have a direct and immediate interest in any suit or controversy involving the validity of the will; and, according to the rules of the common law, would be incompetent witnesses in such suit or controversy." Id. 452, 453. The question came before us again in the case of Gindrat v. Railway, 96 Ala. 162, 11 So. 372. The facts pertinent to this point of that case were these: On July 17, 1845, John Nickel conveyed certain lands to John H. Gindrat. The deed had this habendum clause: "To have and to hold unto himself, his heirs and assigns, forever, in special trust and confidence, nevertheless, for the sole and separate use, benefit, and behoof of Sarah E. Gindrat during the time of her natural life, and at her death said premises shall be held in trust for her three children, to wit, Abraham Gindrat, Mary Elizabeth Winter, and William B. Gindrat, for and during the terms of their natural lives, and at their deaths the same shall vest in the heirs at law or children of them, the said Abraham, Mary Elizabeth, and William B., that may be living at the time of their deaths." As to the character of the remainder given by this instrument to the children of second life tenants, or rather of Abraham Gindrat, one of them, this court said: "If Abraham Gindrat had a child in esse on July 17, 1845, the remainder to his children at once vested in such child, and thereafter opened and let in after-born children as they came into being. This on the familiar principle that the uncertainty which prevents the vesting of a remainder must have reference to the present right of future enjoyment, and not to the enjoyment itself; or, in other words, if, when the final remainder was created, there was a person in esse entitled to take in possession immediately upon the termination of the precedent life estate, the remainder became at once a vested estate in him, however great should be the uncertainty as to whether he would in fact ever come into the possession and enjoyment of the estate; for, as declared by Chancellor Kent, "it is the present capacity," etc., quoting as above.

It is to be noted that all these cases are based upon the supposed authority of Chancellor Kent, and particularly upon his seemingly unequivocal indorsement of the proposition that a vested remainder exists whenever there is a limitation over after a...