Wade v. Bragg

• Decision Date: 12 April 1956
• Citation: 264 Ala. 239,86 So.2d 829
• Parties: Theodore L. WADE, Executor, et al., v. Mary P. BRAGG. 2 Div.364.
• Court: Alabama Supreme Court

Page 829

86 So.2d 829

264 Ala. 239

Theodore L. WADE, Executor, et al., v. Mary P. BRAGG.

2 Div.364.

Supreme Court of Alabama.

April 12, 1956.

Graham Kirkpatrick and Theodore L. Wade, Selma, for appellants.

Pettus, Fuller, Reeves & Stewart, Selma, for appellee.

MERRILL, Justice.

This appeal is from a decree overruling respondents' demurrer to the bill of complaint. The bill was filed by the appellee, Mary P. Bragg, under the Declaratory Judgment Act, Code 1940, Tit. 7, § 156 et seq., seeking a construction of the will and codicil of Annie M. Carson. The respondents, appellants here, are the executor and residuary devisees and beneficiaries under the last will and testament of Eva Mae Moseley, a sister of Annie M. Carson.

The Carson will was dated April 16, 1937 and item 3 of said will devised to testatrix' sister, Eva Mae Moseley, all the rest and residue of her estate not specifically devised. The codicil dated January 7, 1943, annulled item 3 of the original will and substituted the following:

'Item 3. I give and devise the Olds Place, (we omit description) to my sister, Eva Mae Moseley, for and during her natural life, and at her death to vest in fee simple in Thomas Bragg, who is now an official of the Alabama Power Company, at Birmingham, Alabama. I give and devise, in fee simple, to my sister, Eva Mae Moseley, all the rest and residue of my property.'

The testatrix, Annie M. Carson, died on October 4, 1943 and the will and codicil were duly admitted to Probate in Dallas County. The remainderman, Thomas Bragg, was living on that date; he married complainant on October 16, 1943 and died on October 30, 1943, devising all of his property to complainant. Eva Mae Moseley died on May 18, 1954.

Quoting from Appellants' brief, 'The only point of disagreement is, the Complainant contends that the words 'to my sister, Eva Mae Moseley, for and during her natural life, and at her death to vest in fee simple in Thomas Bragg', as used in the codicil to the will of Annie M. Carson devise an interest to Thomas Bragg which became vested on the death of the testator, whereas, the Respondents say, that the very words themselves plainly show the intent of the testator that the interest in the 'Olds Place' devised to Thomas Bragg should not vest until the death of Eva Mae Moseley.'

One question not raised in brief requires disposal. Ordinarily, this Court will not make a declaration of rights in a case of this character when the appeal is from a decree overruling a demurrer to the bill, even when the bill shows a justiciable controversy. But this Court has done so when counsel on both sides have argued the case on appeal on the basis that our decision will settle the controversy and seem desirous of a decision through that procedure, and where there is no factual controversy between the parties that can arise and be made available by answer, and where only a question of law is presented for decision. Atkins v. Curtis, 259 Ala. 311, 66 So.2d 455. Those conditions prevail in the instant case.

Code of Alabama 1940, Title 47, § 140 reads: 'Remainders are either vested or contingent. A vested remainder is one limited to a certain person at a certain time, or upon the happening of a necessary event. A contingent remainder is one limited to an uncertain person, or upon an event which may or may not happen.'

Again, we quote from appellants' brief: 'The pivotal question both on the argument on demurrers before the Circuit Court * * * and on this appeal is, whether the remainder to Thomas Bragg, created by the will of Annie M. Carson, vested at the death of the testator, or was it contingent?'

In Phinizy v. Foster, 90 Ala. 262, 7 So. 836, 837, this Court said:

'The pivotal question is whether the estate in remainder, created by the will, vested at the death of the testator or was it contingent? The distinguishing characteristics are: A remainder is said to be vested when the estate passes out of the grantor at the creation of the particular estate, and vests in the grantee during its continuance, or eo instanti that it determines, when a present interest passes to a certain and definite person, to be enjoyed in futuro, and is said to be contingent, when the estate is limited either to a dubious and uncertain person, or upon the happening of a dubious or uncertain event,--uncertainty of the right of enjoyment, as distinguished from the uncertainty of possession. [Doe] Lessee of Poor v. Considine, 6 Wall. 458 . It is an established principle that estates are regarded contingent when the event upon which they take effect may or may not happen.'

The case of McCurdy v. Garrett, 246 Ala. 128, 19 So.2d 449, is very much in point. Item 2 of the will in that case, stricken of non-pertinent words insofar as we are concerned, is "I hereby give, devise and bequeath to my wife * * * all of my property * * * during her natural life * * *; but upon her death, * * * then all the said property shall vest share and share alike in my children * * *". The will also provided that in the event any of the children should die leaving descendants, that child's share should go to such descendants, but if a deceased child left no descendants, then such share was to be divided among the surviving brothers and sisters.

This Court upheld the contention of the children of the testator that they took a vested remainder in fee at the testator's death, saying:

"The settled law is that a will speaks from the death of the testator, and that, in the absence of a clear manifestation of the testator's intent to the contrary, estates shall be held to vest at the earliest possible period. The intent to postpone...