Thorington v. Hall

• Decision Date: 25 January 1896
• Citation: 21 So. 335,111 Ala. 323
• Parties: THORINGTON ET AL. v. HALL. [1]
• Court: Alabama Supreme Court

21 So. 335

111 Ala. 323

THORINGTON ET AL. v. HALL. ^[1]

Supreme Court of Alabama

January 25, 1896

Appeal from circuit court, Montgomery county; John R. Tyson, Judge.

Action by J. Winter Thorington and others against Bolling Hall. Judgment for defendant. Plaintiffs appeal. Reversed.

This was a statutory action of ejectment, brought by the appellants, J. Winter Thorington, Bessie M. Thorington, and Jack Thorington, against the appellee, Bolling Hall, and sought to recover possession of an undivided one-third interest in certain specifically described lands. Issue was joined on the plea of not guilty. The cause was tried by the court on an agreed statement of facts, which was, so far as is necessary to an understanding of this appeal, as follows Jack Thorington, Sr., ancestor of the plaintiffs, died in 1871, seised and possessed in fee of the land sued for, and left, surviving him, his widow, Mary L. Thorington, and his three sons, Robert D., Jack, and William S. Thorington. Robert died, after his father, and before the death of his mother, and the plaintiffs are the only children and heirs at law of said Robert D. Jack Thorington, Sr., left a will which was duly probated. By this will he gave all of his property to his widow for life or widowhood, and made his wife and William S. Thorington executrix and executor thereof. The sixth and seventh items of the will were as follows: Item Sixth. If my wife shall not marry again, it is my will and desire she shall have the power and authority, and she is hereby invested therewith, to dispose of all the estate and property she may have or die possessed of or be entitled to by her will, to our beloved children, Robert D., Jack, and William S., and in such shares and proportions to them, or the survivors, and under such safeguards, in trust, or otherwise, as under the circumstances then existing she may deem just and wise and best for them; and, in the event of her dying intestate, the said estate and property to be distributed to our said three children equitably, and share and share alike, or to the survivor or survivors of them. Item Seventh. It is my will and desire that should my wife marry again, that in that event there shall be an immediate division of all my estate into four equitable parts or shares, one of which shares shall be retained by my wife, and the three other parts or shares shall be immediately paid over to my said children, Robert D., Jack, and William S., or the survivors or survivor of said children." After said will had been probate, Robert D., Jack, and William S Thorington, sons of the testator, all of whom were of age at that time, on August 28, 1881, entered into an agreement in writing wherein they set forth in hæc verba the sixth and seventh items of the will of their father, and recite that from declarations made by their father, in conversation with them both before and after the making of the will, and also other facts within their knowledge, they were satisfied that said sixth and seventh items, through inadvertence, did not correctly express the will of their father, and that he did not use the words "survivors or survivor," as they appeared in said items, in their legal and technical signification, and that he did not intend to use the said words to exclude from sharing in his estate a child or children of such of his sons as might die before the others leaving a child or children, and there was no doubt in their minds that, where the words "survivors or survivor" occurred in said will, their father referred to and meant thereby the children or child of whichever of them should die before the others leaving a child or children; and this agreement then proceeds as follows: "Now, in order to remedy said inadvertence, and to effectuate the real will of our deceased father, as it is understood and known by us, it is hereby covenanted and agreed, by and between the undersigned, that said will may be taken and construed so that if either the said Robert D., Jack, or William S. should die leaving a child or children, that then, in that event such child or children shall take the same share and interest in our father's estate as its or their deceased father would have taken had he lived; the object and intent of this agreement being to cause said will to have the same legal operation and effect that it would have if the words 'or the survivors,' and the words 'or the survivors or survivor of them,' in said sixth item, and the words 'or the survivors or survivor of said children,' in the seventh item, were not contained in said will." Mary L. Thorington, the widow of Jack Thorington, Sr., deceased took possession of the lands sued for in this action, as a part of the estate of her deceased husband, and continued to hold the same until her death in 1890. Mary L. Thorington left a last will and testament, which was duly admitted to probate, the only items of which pertinent to the present appeal...