Smith v. Smith

• Decision Date: 02 February 1904
• Parties: SMITH v. SMITH ET AL. [a1]
• Court: Alabama Supreme Court

36 So. 616

139 Ala. 406

SMITH v. SMITH ET AL. ^[a1]

Supreme Court of Alabama

February 2, 1904

Appeal from Chancery Court, Marengo County; Thos. H. Smith Chancellor.

Suit by Georgia Curry Smith against Evelyn Hatch Smith and others. A demurrer was sustained to part of the bill, and complainant appeals. Reversed.

On the submission of the cause upon the motion to dismiss and the demurrer, the chancellor rendered an opinion, which was as follows: "On consideration I am of opinion that under the terms of the will of Mourning S. Bocock the pasture lands passed in fee, and as to them, complainant states a cause showing that she is entitled to an allotment by partition and, therefore, the demurrers to the bill as a whole are not well taken. That while complainant under the terms of the will alleged in the bill, is not entitled to a fee in the lands therein described other than the pasture lands, she is entitled to a home during her widowhood in the share of her deceased husband, but the bill is not limited to an allotment to her as homestead, but prays a partition to set aside to her in fee one-half of the lands. I am of opinion that the demurrers to that part of the bill are well taken."

The decree which was enrolled with the foregoing opinion overruled the motion to dismiss the bill, overruled the demurrers numbered from 1 to 14, and further adjudged that the demurrers to so much of the bill as sought a partition of the pasture lands be overruled, but that the demurrer to so much of the bill as sought a partition of the lands other than the pasture lands be sustained. From this decree the complainant appeals, and assigns the rendition thereof as error.

Thomas E. Knight, for appellant.

W. H Tayloe, W. M. Spencer, and Gunter & Gunter, for appellees.

HARALSON J.

The bill was filed by complainant for the partition of lands in which she claims an interest with others.

The demurrer to the bill as a whole was overruled, and it was held that the complainant was entitled to partition in 200 acres of land called the pasture land. The grounds of demurrer to the bill as a whole, are numbered from 1 to 14 inclusive. There was another ground of demurrer, numbered 4 to that part of the bill which seeks partition of the lands mentioned therein, other than the pasture lands, and the demurrer as to this ground was sustained. The effect of the ruling as stated by the court is, that as to the partition of the pasture lands, the bill contains equity, but as to the other lands, besides these, it does not. The complainant appeals, assigning as error, ruling of the court in sustaining the demurrer to the part of the bill seeking partition of lands other than the pasture. To determine the question, the will of Mrs. Bocock is presented, and must be construed. Mrs. Bocock owned these lands. By the fifth clause of her will, executed on the 22d of May, 1886, she devised to her two nephews, Clifford A. and his brother, Ralph Smith, the lands last referred to, "in joint and equal rights." After making such devises and bequests as she desired, by the twelfth clause, she directed that all the balance of her estate of every kind, real and personal--employing the language of the will--"shall be equally divided among my relatives and connections as follows," specifying them by name, the said Clifford A. and Ralph Smith being of the number.

By this fifth clause it is clear, that in the 840 acres of the cultivable lands she devised therein to her said two nephews, they took as tenants in common the absolute fee. In the original will there is no word of limitation or restriction upon the interest devised to these parties in these lands.

Ralph Smith died in 1901, leaving a widow, Evelyn H. Smith, and one child, Ralph Austin Smith, who are made parties defendant to the bill. Clifford A. Smith died testate, shortly after his brother, Ralph, and in the same year, leaving no child, but leaving the complainant as his widow. By his last will he gave all the property of which he was seised and possessed, to the complainant. This will was probated in Marengo county, Ala. It is shown by the bill, that at the time of his death, said Clifford A. was an inhabitant of Philadelphia, Pa., whither he had previously moved from Marengo county, and that complainant, at that time, resided with him, and has continued since to reside in that city, and has never married again. She declares no intention of making her home on these lands.

On the 13th of October, 1888, the testatrix, Mrs. Bocock, duly executed a codicil to her will, in which she recited, that on the 22d of May, 1886, she executed the foregoing as her last will and testament, and after mature reflection, she desired to modify and change it. She then refers to the fact, that by the fifth clause of her will she had devised the balance of her land,--amounting to 840 acres,--to her nephews, Clifford A. and Ralph Smith, and states, "after due consideration, I modify said devise by saying, that I do not wish any of the lands sold by said devisees, except the pasture lands, but that they be held and cultivated by said devisees, (her two nephews), being satisfied by so doing, they will make themselves useful, independent and happy members of society." As to those lands which she had given them by her will a fee as tenants in common, she made the following consecutive provisions, which, for convenience of reference, we number. (1) "If either of my said nephews, Clifford A. Smith, or Ralph Smith, shall die without leaving a child or children surviving him, the share or interest of the one so dying, shall pass to his surviving brother." (2) "If both of them shall die without children surviving them, then the devise made to them under the said clause of my will, shall fall back into my estate, and be devised under the 12th clause thereof,"--the residuary clause. (3) "If either of my said nephews shall die leaving a widow surviving him, she shall be allowed to have a home on the share of her deceased husband, as long as she may choose to do so, she remaining and continuing his widow. If she shall marry again, this provision shall cease from that time." (4) "If my said nieces and nephews shall die leaving a child or children surviving them, their respective children shall take their respective shares...