Spira v. Frenkel

• Decision Date: 09 June 1923
• Docket Number: 1 Div. 248.
• Citation: 97 So. 104,210 Ala. 27
• Parties: SPIRA v. FRENKEL.
• Court: Alabama Supreme Court

97 So. 104

210 Ala. 27

SPIRA v. FRENKEL.

1 Div. 248.

Supreme Court of Alabama

June 9, 1923

Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.

Suit by Matilda S. Frenkel against Henry A. Spira. From a decree for complainant, respondent appeals. Affirmed.

Edw. W Faith and Stevens, McCorvy, McLeod & Goode, all of Mobile for appellant.

Brown &amp Kohn and Harry T. Smith & Caffey, all of Mobile, for appellee.

SOMERVILLE J.

The bill is filed for the purpose of quieting the title to certain real property in the city of Mobile. The complainant and the respondent, who is her brother, are the only children of Henrietta G. Spira, who died in 1918, leaving a will which has been duly probated. After making several special bequests, which have no bearing on the question here presented, the will declares:

"Fourth. All the rest, residue and remainder of my estate, of whatsoever kind or nature and wheresoever the same may be situated, I give, devise and bequeath unto my two children Henry Spira and Matilda Frenkel absolutely and without limitations, share and share alike, but if either one should die leaving no issue, then such child's portion shall go to the other child; but if there shall be issue then the parent's share shall be distributed to such issue."

The question that arises under this provision is simply whether the words of survivorship refer to the death of either child before the death of the testator, or whether they refer to the death of either child at any time, before or after her death. The respondent's contention is that the latter construction is the correct one, and hence that he has a contingent interest in the entire residuary estate of the testator, including the share devised to the complainant. The trial court ruled against this contention, and granted the relief prayed for.

Testamentary provisions like this have been familiar subjects of judicial discussion and adjudication for a hundred years or more in England and in America, and the principles which govern, and the conclusions to be reached, are thoroughly well settled and understood. Counsel for appellant concede that it is well established in this state that "words of survivorship in a will, unless there is a manifest intent to the contrary, always relate to the death of the testator." Smith v. Smith, 139 Ala. 406, 36 So. 616; s. c., 157 Ala. 80, 47 So. 220, 25 L. R. A. (N. S.) 1045; Baker v. Baker, 182 Ala. 194, 62 So. 284; Burleson v. Mays, 189 Ala. 107, 66 So. 36; O'Connell v. O'Connell, 196 Ala. 224, 72 So. 81; Haigler v. Haigler, 202 Ala. 480, 80 So. 864; Fowlkes v. Clay, 205 Ala. 523, 88 So. 651; Darrow v. City of Florence, 206 Ala. 675, 91 So. 606.

Appellant's contention is that the will before us does show a manifest intention to the contrary, and hence that the provision in question is not subject to the general rule of construction. The arguments made in support of this contention are both ingenious and interesting and we would like to recite and review them at length. Our study of this will convinces us, however, that, whether considered in the light of judicial precedents, or as a matter of common sense, without the aid of such authority, the survivorship clause in the residuary devise is reasonably susceptible of but one construction, viz. that it relates to the death of the testator; so that, if the two devisees survived the testator, they thereupon took their respective shares in fee simple, forever.

It is never to be intended that any rational person will deliberately devise property "absolutely and without limitations," and immediately contradict himself by the imposition of a limitation, and such a conclusion is not permissible, unless the succeeding language is susceptible of no other meaning. This rule of common sense has been adopted as a general rule of construction by the courts, viz.:

"A clear gift is not to be cut down by anything which does not, with reasonable certainty, indicate an intention to cut it down." Pitts v. Campbell, 173 Ala. 604, 55 So. 500; O'Connell v. O'Connell, 196 Ala. 224, 72 So. 81.

The case of Barrell v. Barrell, 38 N. J. Eq. 60, is substantially identical with the instant case, and its reasoning is clear and conclusive on this phase of the question.

If therefore, the proper construction of the survivorship clause were an open question, the...