Smith v. Smith

• Decision Date: 06 February 1908
• Citation: 47 So. 220,157 Ala. 79
• Parties: SMITH ET AL. v. SMITH.
• Court: Alabama Supreme Court

47 So. 220

157 Ala. 79

SMITH ET AL. v. SMITH.

Supreme Court of Alabama

February 6, 1908

On Rehearing, July 3, 1908.

On Appellee's Application for Rehearing.

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

Suit by Georgia Curry Smith against Evelyn Hatch Smith and others. From a decree for complainant, defendants appeal. Reversed and remanded.

Tyson C.J., and Haralson and McClellan, JJ., dissenting.

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

Thomas E. Knight, E. Waring Wilson, and R. W. Walker, for appellee.

McCLELLAN, J.

The only question presented on this appeal is one of construction of the will and codicils thereto of Mrs. Bocock. This identical question was passed upon on former appeal, and the views and decision of the court announced in Smith v. Smith, 139 Ala. 406, 36 So. 616. A careful reconsideration of the matter leads to the conclusion that the former decision was well rendered, and on that authority the decree appealed from is affirmed.

Affirmed.

TYSON, C.J., and HARALSON and DOWDELL, JJ., concur. SIMPSON, ANDERSON, and DENSON, JJ., dissent.

ANDERSON J.

I cannot agree to an affirmance of this case upon the conclusion reached by the court upon the former appeal when this case was here before, and which is reported in 139 Ala. 406, 36 So. 616. I do not question the rule as laid down by the authorities quoted and cited in the opinion, as they fix the termination upon the death of the testator, only in the absence of a contrary intent. I think the codicil of the will expresses a contrary intent, and one just the opposite to what was held in the former opinion. "The cardinal rule, and one above all others, for the construction of wills, is to ascertain the intention of the testator and give it effect, if not prohibited by law." Campbell v. Weakley, 121 Ala. 64, 25 So. 694; Wolffe v. Loeb, 98 Ala. 426, 13 So. 744. I am not unmindful of section 1020 of the Code of 1896, which says: "Every estate in lands is to be taken as a fee simple, although the words necessary to create an estate of inheritance are not used, unless it clearly appears that a less estate was intended." This court, in the case of Whorton v. Morange, 62 Ala. 209, in considering this statute and considering its influence upon the construction of wills, speaking through Brickell, C.J., said: "Greater liberality of construction of devises and of wills is necessarily indulged than of deeds and other instruments which transfer the title to property, real or personal. They are often drawn most unskillfully, in the absence of counsel, and are confused or loose and inaccurate in expression. So much depends on the words, arrangement, and circumstances of each particular instrument that it was said more than two centuries ago that cases upon wills had no brothers. The authority of decisions as to the interpretation of wills, so far as they may be applied to the particular instrument, cannot, however, be disregarded without unsettling the titles to property. The object of all construction is to ascertain the intention of the testator, and however inartificially or inaccurately it may be expressed, when ascertained, it must prevail, if not inconsistent with the law." It is said by Blackstone: "By a will alone an estate may pass by mere implication, without any express words to direct its course." 2 Black. 381. The spirit, rather than the mere letter, of the will, the law regards; nor that upon mere conjecture, words can be added which the testator has not used, but from the words actually employed the general intent may be inferred, though it is not particularly expressed. In Chapman v. Brown, 3 Burr. 1634, it was said by Lord Mansfield: "A court of justice may construe a will, and from what is expressed necessarily imply an intent, not particularly specified in words; but we cannot, from arbitrary conjecture, though founded upon the highest degree of probability, add to a will or supply the omission. If words are supplied or rejected by construction, it must always be in support of the manifest intent. The constant object of construction is to attain the intent."

While the foregoing rule has been often quoted by decisions of the land, many of them seem to regard it as an ancient theory unworthy of practical operation, when it has become necessary to vest a fee in the immediate taker and thus defeat the remainder, notwithstanding our statute has thrown every obstacle against the creation of perpetuities. Indeed, this rule has been so often disregarded that professional men, as well as the average layman, have almost reached the conclusion that the entailment of property, even where it does not violate the statute against perpetuities, is almost impossible. The construction of the will in the case at bar is an apt illustration of the way courts disregard the manifest intent of a testator, rather than apply that wise and salutary rule which will give force and effect to his dying wishes. I fully agree that under the terms of the fifth clause of the will the nephews, C. A. and Ralph Smith, took as tenants in common the absolute fee; that is, that such would have been their estate upon the death of Mrs. Bocock without more. But can it be questioned that the testatrix did not have the right at any time before her death to change her will, and thus qualify, limit, or divest entirely the estate previously bequeathed? It was her property, and she had the right to make any changes as to the devise of same that may have occurred to her, any time before her death, as the devisees could not possibly take until after her death. Acting upon this right, she executed a codicil, expressing therein her reason and motive for doing so. After referring to her will, which she desired to modify and change, she refers to the fifth clause, wherein she devised 840 acres of land to Cliff 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 land, 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." Could these nephews sell the land during the life of Mrs. Bocock, the testatrix, when they could not take it until after her death? No. Then how can it be reasonably held that she did not wish to prevent a sale after her death, or that she did not wish to divest the fee simple that was provided for under the original will? Could language be plainer or motives more pathetic? "I do not wish the land sold by said devisees, but that they be held and cultivated by said devisees, being satisfied that by so doing they will make themselves useful, independent, and happy members of society." When? There can be but one answer: After the death of Mrs. Bocock. How could they sell it while she lived? Moreover, she says: "If either of my said nephews * * * 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." Ralph died and left a child, Ralph Austin. Ciff died, but left no child, but is survived by Ralph Austin, the son of Ralph. The codicil further provides: "If my said nieces and nephews shall die leaving a child or children surviving them, their respective children shall take their respective shares or interests under the said clause of my will in fee simple." Who was to take in fee simple? The child or children that my nephews and nieces left surviving them. It is clear that the testatrix intended by the codicil to cut the fee simple to the nephews, under the will, down to a life estate as tenants in common, with remainder over to the children of the survivor, in case the other left no child or children surviving him. In case they both left no child or children them surviving, then the land was to go under the general residuary clause of the will. What sense was there in a provision against a failure of a taker only during the life of the testatrix? In case any of them died before she did, all that she had to do was to add a new codicil, so as to meet all conditions arising during her lifetime. It amounts to an almost legal absurdity to say that she did not by this codicil intend to provide against contingencies arising after her death, and did not intend to cut down the fee under the fifth clause of the will.

Again, we find her making provision for a home on the land for the widow of a nephew. If she intended to devise a fee-simple estate to the nephew, why was it necessary to provide a home for his widow? To hold that Mrs. Bocock did not by the codicil intend to entail the land and cut off the fee simple under the will is a distortion of the very intent and purpose for which the codicil was made. Section 3840 of the Code of 1896 says: "The Supreme Court, in deciding each case, when there is a conflict between its existing opinion and any former ruling in the case, must be governed by what, in its opinion at that time, is law, without any regard to such former ruling on the law by it; but the right of third persons, acquired on the faith of the former ruling, shall not be defeated or interfered with by or on account of any subsequent ruling." As the former opinion in this case does not conclude or influence us upon this appeal, and being a misconception of the law as applied to the codicil to Mrs. Bocock's will, the same is hereby overruled.

The chancellor erred in decreeing the widow of Cliff A. Smith any interest in the land other than the pasture land, and the decree of the chancery court is reversed, and one is here rendered denying complainant relief as to the land other than the pasture land, and the...