Springer v. Vickers, 1 Div. 472

• Decision Date: 30 June 1953
• Docket Number: 1 Div. 472
• Citation: 259 Ala. 465,66 So.2d 740
• Parties: SPRINGER v. VICKERS et al.
• Court: Alabama Supreme Court

Page 740

66 So.2d 740

259 Ala. 465

SPRINGER v. VICKERS et al.

1 Div. 472.

Supreme Court of Alabama.

June 30, 1953.

Rehearing Denied Aug. 11, 1953.

McCorvey, Turner, Rogers, Johnstone & Adams, Mobile, for appellant.

Inge, Twitty, Armbrecht & Jackson, V. R. Jansen, Joe C. Sullivan and John H. Tappan, Mobile, for appellees.

GOODWYN, Justice.

This is a proceeding to construe the will of Joseph A. Hynde, who, at the time of his death on November 11, 1934, was a resident of Mobile County. The body of the will, leaving out the property description, is as follows:

'State of Alabama,

'County of Mobile.

'Know All Men by These Presents. That I, Joseph A. Hynde, being of sound mind, do make and publish this, my last will and testament, hereby revoking all wills by me at any time heretofore made.

'As to my worldly estate, and all the real, personal or mixed property of which I shall die seized or possessed, or to which I shall be entitled at the time of my decease, I devise, bequeath and dispose thereof in the following manner;

'First: I give, devise and bequeath to Joseph L. Hermann, Jr. all my interest in the business of Hermann and Hynde, a co-partnership composed of Joseph A. Hynde and Joseph L. Hermann, Jr.

'Second: I give, devise and bequeath to Charles Ambrose Fletchinger, in fee simple, the following described real property situated in the City and County of Mobile, State of Alabama to-wit: (Property description omitted.)

'Third: I give, devise and bequeath to Katie Hynde and Nellie Hynde, in fee simple, the following described real property, situated in the City and County of Mobile, State of Alabama, to-wit: (Property description omitted.)

'Fourth: I give, devise and bequeath unto Anna Norville Kern, in fee simple, subject to the life interest of Jennie Cotlin, the following described real property in the City and County of Mobile, State of Alabama, to-wit: (Property description omitted.)

'Fifth: I give, devise and bequeath to the Bishop of Mobile, Alabama, in fee simple, subject to the life interest of Mary A. Kearney, the following described real property, situated in the City and County of Mobile, State of Alabama, to-wit: (Property description omitted.)

'Sixth: I give, and bequeath to Springhill College located at Spring Hill, Alabama, the sum of Two Thousand Dollars ($2,000.00) to be paid out of my personal property with the request that masses by the priests of Spring Hill College be said for the repose of the souls of Joseph A. Hynde, and upon her death, Nellie Lucy Hynde. In the event that this bequest be held void under the laws of Alabama, because bequeathed for the purpose of having Masses said for the repose of the souls above mentioned, or for any other reason, then I desire to give and bequeath to Spring Hill College the sum of Two Thousand Dollars ($2,000.00) to be paid out of my personal property.

'Seventh: I give, devise and bequeath to my wife, Nellie Lucy Hynde, all of my personal property of every kind and description.

'Eighth: I give, devise and bequeath unto my wife, Nellie Lucy Hynde, our home at 1052 Dauphin Street, and also the lot in the rear, in fee simple.

'Ninth: I give, devise and bequeath all of my real property to my wife, Nellie Lucy Hynde, for her natural life, and, at her death, the same is to be divided among the following named persons, namely: Anna Norville Kern, Peyton Norville, William J. Norville, Joseph H. Norville, Helen Norville Grayson, Rachel Norville Finkbohner, Mabel Hartwell Courtney, Genevieve Lucy Springer, Margaret V. O'Neill and Marion R. Vickers, all nieces and nephews of the testator, and N. L. Vickers, Jr., a grand nephew of the testator, and Anne Hartwell Johnson and Wallace Johnson, Jr., a gand-niece and grand-nephew, respectively, of the testator, the latter two named persons to take an undivided one-twelfth interest, being the same heretofore devised to Irma Hartwell Johnson, their mother, lately deceased. In the event that any of the parties above mentioned in this paragraph die prior to the above mentioned property vesting in them, then his or her share shall go to his or her children, if any, and if there are no children, then his or her share shall be equally divided among the surviving of the above named parties. In the event N. L. Vickers, Jr. dies prior to the above mentioned property vesting in him, and without any children, then his share shall vest in N. L. Vickers. In the event of the death of Anne Hartwell Johnson or Wallace Johnson, Jr., prior to the above described property vesting in them, and without any children, then his or her share shall vest in the survivor of them.

'Tenth: I do hereby give and bequeath to each of my executors, hereinafter named, the sum of One Thousand Dollars ($1,000.00) each in lieu, of any and all fees allowed to them by law, as compensation for acting as such executors.

'Eleventh: I do hereby nominate and appoint Nellie Lucy Hynde, Peyton Norville and Joseph L. Hermann, Jr. as my executrix and executors, respectively, of this my last will and testament, and I do hereby expressly exempt them from giving any bond whatsoever as executrix and executors of this will. I do hereby nominate and appoint Marion R. Vickers as guardian for N. L. Vickers, Jr., and I do hereby exempt him from giving any bond whatsoever as such guardian. I do hereby nominate and appoint Wallace Johnson as guardian for Anne Hartwell Johnson and Wallace Johnson, Jr., and I do hereby expressly exempt him from giving any bond whatsoever as such guardian.

'I do hereby authorize my said executrix and executors to sell any personal property which I may own at the time of my death without obtaining any order of Court therefor. It is my desire that none of my real estate be sold, unless, in the opinion of my executrix and executors it is necessary or expedient, in which event, they shall be allowed to sell the same without obtaining any order of Court, and the proceeds therefrom shall be considered as real property for the purpose of distribution under this will.

'I do hereby authorize the guardian above appointed for N. L. Vickers, Jr., and likewise the guardian appointed for Anne Hartwell Johnson and Wallace Johnson, Jr., to sell any real or personal property which may vest in him as such guardian, without obtaining any order of Court therefor, and to join in any partition or division proceedings among the co-owners, without obtaining any order or authority from any Court therefor.

'In Witness Whereof, I, the undersigned Joseph A. Hynde, have to this, my last will and testament, contained in the foregoing three pages, subscribed my name and affixed my seal, this the 3rd day of March, 1934.

'(s) Joseph A. Hynde (Seal)'

The particular provision calling for construction is Item Nine. The other parts are pertinent only to the extent that they may be helpful in arriving at the testator's intent with respect to Item Nine.

The holding of the trial court is that under Item Nine Nellie Lucy Hynde, the wife of testator, took a life interest in the property therein devised, with vested remainders over to testator's nieces, nephews, grandnephews and grandniece named in the first sentence of Item Nine, with the nieces and nephews and N. L. Vickers, Jr., a grandnephew, each taking an undivided one-twelfth interest, and Anne Hartwell Johnson and Wallace Johnson, Jr., a grandniece and grandnephew, respectively, each taking an undivided one twenty-fourth interest.

All of the persons named in Item Nine were living at the time of testator's death. Nellie Lucy Hynde, the life tenant, died on August 15, 1950. The following of the named remaindermen died prior to the life tenant's death, viz.: Joseph H. Norville, Anna Norville Kern and N. L. Vickers, Jr.

The specific and decisive question presented is whether these deceased remaindermen acquired, at testator's death, a transmissible interest in the property, that is, an interest which was alienable, devisable and descendible. The lower court held that they did. Appellant insists it was the testator's intention to postpone vesting of the remainder interest until the death of the life tenant; that vesting of such interest was made contingent on the persons named as remaindermen surviving the life tenant.

We have been favored with helpful briefs. Our conclusion is, after full consideration of the arguments made, that the decree of the trial court is due to be affirmed. We see no escape from this conclusion when the will is considered in the light of recognized rules of construction.

One of the rules is thus stated in McCurdy v....