Spencer v. Title Guarantee Loan & Trust Co.

• Court: Alabama Supreme Court
• Writing for the Court: BOULDIN, J.
• Citation: Spencer v. Title Guarantee Loan & Trust Co., 222 Ala. 221, 132 So. 32 (Ala. 1931)
• Decision Date: 15 January 1931
• Docket Number: 6 Div. 772.
• Parties: SPENCER v. TITLE GUARANTEE LOAN & TRUST CO. ET AL.

132 So. 32

222 Ala. 221

SPENCER v. TITLE GUARANTEE LOAN & TRUST CO. ET AL.

6 Div. 772.

Supreme Court of Alabama

January 15, 1931

Appeal from Circuit Court, Jefferson County; William M. Walker Judge.

Bill by the Title Guarantee Loan & Trust Company, as trustee under trust executed by Martha B. Woodward, deceased, against Margaret Evins Spencer, Joseph W. Simpson, and others, for construction of the deed of trust. From the decree respondent Margaret Evins Spencer appeals.

Affirmed.

See also 132 So. 730.

Wm. M Spencer, Jr., Borden Burr, and D. K. McKamy, all of Birmingham, for appellant.

E. L. All, John S. Coleman, and Bradley, Baldwin, All & White, all of Birmingham, for appellees.

BOULDIN J.

On January 6, 1926, Mrs. Martha B. Woodward, than eighty-one years of age, by a trust instrument conveyed to Title Guarantee Loan & Trust Company her holdings of preferred and common stock in Wheeling Steel Corporation to be held, managed, and controlled by the trust company, with power of reinvestment.

The net income was to be paid to the grantor during her life, and after her death to her daughter, Margaret W. Hopkins, if living, during the term of her natural life.

Then followed this paragraph:

"(d) On the death of my daughter, Margaret W. Hopkins, or if she is dead at the time of my death, this trust is to terminate and the trustee is directed to divide the trust property and deliver one-third to my daughter, Bertha W. Underwood, if she be living, one-third to my son A. H. Woodward, if he is living, or to his children, if he is dead, and one-third to the children of my daughter, Margaret W. Hopkins."

Mrs. Woodward died in 1928, Mrs. Hopkins in 1930. The present bill was filed by the trustee to construe the above quoted provision of the trust instrument, and in particular the provision that in the division of the property on the termination of the trust, the trustee should deliver "one-third to the children of my daughter, Margaret W. Hopkins."

When the trust was created, Mrs. Hopkins had only one child living, Mrs. Margaret Evins Spencer, and could thereafter have no other child. However, Mrs. Hopkins had a grandson, Joseph W. Simpson. She was first married to Dr. Thomas E. Evins, who died in 1899, leaving only a small estate. Two daughters, Margaret and Josephine, were born of this marriage. After the death of Dr. Evins, the widow with her children lived in the home of her father, J. H. Woodward, and mother, Martha B. Woodward, until her second marriage to Mr. Hopkins, and thereafter lived next door until 1915, when Margaret married William M. Spencer, Jr. Josephine married James A. Simpson June 8, 1920; and to them was born Joseph W. Simpson, March 30, 1921. His mother, Josephine, died when he was about six weeks old. Since his mother's death the child has resided, by mutual arrangement, with Mr. and Mrs. Spencer. He was five years of age when the trust was created.

The inquiry is: Did Mrs. Woodward have in mind that upon a division of the property on the termination of the trust, the share of Mrs. Hopkins should go wholly to the daughter, Mrs. Spencer, or one half to her and the other to the child, Joseph W. Simpson, as representative of his mother, Josephine?

By the trust instrument Mrs. Woodward provided for a division of her large holdings of securities, a partial distribution immediately, and a further division after her death, or the death of Mrs. Hopkins, who was then in ill health. The trust was continued for her benefit for life.

In a sense there were three trusts created:

First, bonds of the par value of $124,000 and 200 shares of common stock of Union Pacific Railway Company were conveyed to the trust company with the duty to collect all interest accrued to January 1, 1926, for the benefit of Mrs. Woodward, and as soon thereafter as practical to make division between her three children, naming them, share and share alike.

Second, 60 shares of preferred stock in the Standard Sanitary Manufacturing Company were conveyed to the trust company for the use of the grantor during her life, and after her death in trust for "grandchild and namesake, Martha Woodward, daughter of A. H. Woodward," and to be delivered to her on arrival at twenty-five years of age, or sooner, at the discretion of her father. As to this trust, it is further provided that in case the grandchild does not survive the donor, or dies before time for delivery to her, it shall go to the legal heirs of such granddaughter. The grandchild then had brothers and sisters living.

Then follows the trust we are to construe. As to this it should be further noted that Mrs. Bertha W. Underwood, a daughter taking one-third, had no children, and would have none. So, it was provided that if she be not living on the termination of the trust, her share should go, one half to her son, A. H. Woodward, if living, and if not, to his children, and the other half to "the children of my daughter, Margaret W. Hopkins."

It is manifest the trust we are dealing with is testamentary in character; aims at a distribution of the trust property upon the termination of the trust at or subsequent to her death. Indeed, the instrument declares certain provisions are in lieu of provisions made in a prior will.

The general scheme of the will, so to speak, is a division share and share alike among her children or their representatives under the statutes of distribution.

In clause (d) above quoted the direction is to "divide" and to "deliver" to those named, the natural objects of her bounty, as if the property were already theirs, and the time had come for division and delivery to them.

Every one knows that "child" or "children" in common usage means descendant or descendants of the first degree; and "grandchild" or "grandchildren" designates those of the second degree. The legal or technical meaning is the same; in fact this became the legal meaning because the law looks to the intent as expressed in the words used. In the absence of something in the will, construed as a whole, in the light of the subject-matter and the situation with which the testator is dealing, disclosing a different intent, such words will be given their usual and technical meaning. Margaret E. Spencer v. Title Guarantee Loan & Trust Co., (Ala. Sup.) 132 So. 730; Wilson v. Rand, 215 Ala. 159, 110 So. 3; Duncan v. De Yampert, 182 Ala. 528, 62 So. 673; Edwards v. Bender, 121 Ala. 77, 25 So. 1010; Rosenau v. Childress, 111 Ala. 214, 20 So. 95; Continental Life Ins. Co. v. Webb, 54 Ala. 688; McGuire v. Westmoreland, 36...