Wilbur v. Campbell

• Decision Date: 08 December 1966
• Docket Number: 8 Div. 214
• Citation: 280 Ala. 268,192 So.2d 721
• Parties: Belle Campbell WILBUR v. Lionel CAMPBELL et al.
• Court: Alabama Supreme Court

Page 721

192 So.2d 721

280 Ala. 268

Belle Campbell WILBUR v. Lionel CAMPBELL et al.

8 Div. 214.

Supreme Court of Alabama.

Dec. 8, 1966.

Robert Sellers Smith, Huntsville, Goodwyn & Smith, Montgomery, for appellant.

Cloud, Berry & Ables, Huntsville, for appellees.

GOODWYN, Justice.

The appellant, Belle Campbell Wilbur, filed a bill for a declaratory judgment seeking a construction of her husband's will as vesting in her a fee simple title to the farm land devised to her by Item Two of the will. The respondents demurred to the bill, challenging its equity on the ground that the will, attached to and made a part of the bill, shows that complainant's title to the property 'constitutes a fee simple estate subject to a condition subsequent.' The demurrer was sustained, with the decree also providing as follows: '(T)he Court being of the opinion said bill cannot be amended to give it equity it is further ordered, adjudged and decreed by the Court that said bill be and the same is dismissed and the Complainant is taxed with the costs herein, for which let execution issue.' This appeal is from that decree.

As a predicate for sustaining the demurrer, the trial court expressed its opinion 'that the will is unambiguous and that * * * the devise in Item Two * * * is unambiguous and that such a devise by a husband in total restraint of a second marriage by his wife is valid and will be enforced according to its terms and that complainant is vested with a fee simple title in the real estate devised to her subject to a condition subsequent, abridging or defeating such title, in the event of her remarriage.'

No point is made as to the propriety of construing the will in ruling on the demurrer. The parties argue the case on the basis of the demurrer and appear desirous that this court determine whether the trial court correctly construed the will. The applicable principle is thus stated in Town of Citronelle v. Gulf Oil Corp., 270 Ala. 378, 380, 119 So.2d 180, 181:

'Ordinarily it is not appropriate to make construction of an instrument on a demurrer to a bill of complaint seeking a declaratory judgment. Alabama State Milk Control Board v. Graham, 250 Ala. 49, 33 So.2d 11. Ordinarily the court does not make such declarations unless counsel for both sides argue the case on the basis of the demurrer to the bill and a question of law is thereby raised and counsel are desirous that the court make such interpretation. This court will make a declaration of rights under such circumstances where the question is raised by demurrer. McCall v. Nettles, 251 Ala. 349, 37 So.2d 635; Darling Shop of Birmingham v. Nelson Realty Co., 255 Ala. 586, 52 So.2d 211; Blackwell v. Burketts, 251 Ala. 233, 36 So.2d 326. In other words, the parties join in the effort to have the deed (will) construed on demurrer and we will accordingly proceed to treat the issue as so presented.'

The provisions of the will pertinent to a determination of the testator's intent are contained in Items Two through Five, viz.:

'ITEM TWO: I give, devise and bequeath unto my beloved wife, Belle Campbell Wilbur, my home on Greene Street, Huntsville, Alabama, and all of my farm land in Madison County, Alabama, which lies East of the highway known as old U.S. Highway #231, together with all of my personal property, wheresoever situated or located, EXCLUDING HOWEVER, from the personal property all of my farming implements, livestock, farming tools, supplies and farming equipment. Should by (sic) wife predecease me, then and in this event, the above property so left to her in this Will shall descend under the provisions of ITEM FIVE of this Will. PROVIDED, HOWEVER, that should my wife remarry after my death, then she shall forfeit any interest she may have in the real property left to her and I direct my Executors to take steps to reclaim possession and title to any property she may have inherited under this Will and the same shall thence descend under provisions of Item FIVE of this Will.

'ITEM THREE: I give, devise and bequeath unto my brother-in-law, LIONEL CAMPBELL, so much of my farm in Madison County, Alabama that lies in the shape of a triangle and is located between old U.S. Highway #231 and the Memorial Parkway together with all my farm implements, livestock, farming tools, supplies and equipment. In my judgment, the acreage herein Willed is approximately twenty (20) acres.

'ITEM FOUR: I give, devise and bequeath all of my farm in Madison County, Alabama, which lies west of the present location of New U.S. Highway 231 also known as Memorial Parkway to Martha McGehee, Laura D. Renegar, Jackson Renegar, Tera M. Shaw, Annie Lee Hinebaugh and Janie Shaw Clark, with the provision, however, that should Martha McGehee, Laura D. Renegar, or Jackson Renegar predecease me, then it is my Will that their respective share or shares under this Item shall descend equally to Tera M. Shaw, Annie Lee Hinebaugh, and Janie Shaw Clark. Should Tera M. Shaw, Annie Lee Hinebaugh, or Janie Shaw Clark, predecease me, then it is my Will that their children or their lineal blood descendants shall inherit the share that their parent would have inherited under this Will, per stirpes.

'ITEM FIVE: The residue of my property, including any property that might return or vest in my estate from Item Two of this Will, I give,...