Wilder v. Loehr

• Decision Date: 16 October 1924
• Docket Number: 6 Div. 145,146.
• Citation: 101 So. 591,211 Ala. 651
• Parties: WILDER v. LOEHR ET AL.
• Court: Alabama Supreme Court

101 So. 591

211 Ala. 651

WILDER v. LOEHR ET AL.

6 Div. 145, 146.

Supreme Court of Alabama

October 16, 1924

Appeal from Circuit Court, Jefferson County; William M. Walker Judge.

Bill in equity by Rosa M. Wilder against Irma M. Loehr, Lorena Jennings, and Joseph A. Zinszer, and cross-bill by Joseph A Zinszer. From a decree dismissing both the original and cross-bills, complainant and cross-complainant appeal. Affirmed.

Basil A. Wood and Eugene H. Hawkins, both of Birmingham, for appellant.

Sterling A. Wood, of Birmingham, for cross-appellant.

J. L Drennen, of Birmingham, for appellees.

GARDNER J.

One Peter Zinszer died in the city of Birmingham in 1895, leaving surviving him his widow Rosa Zinszer (now Rosa Wilder), one of the appellants here, and his son Joseph who at the time was 17 years of age. At the time of his death Peter Zinszer was the owner of a large mercantile establishment in Birmingham, and also owned some valuable real estate, a portion of which is involved in this litigation.

On November 12, 1887, said Peter Zinszer made a will. Under the terms of this will his said widow now claims to own the property involved in this litigation, and files this bill to settle the title thereto. In November, 1896, the son, Joseph Zinszer, married Lorena Dozier, one child being born to them, who is now the wife of George L. Martin. On July 18, 1914, Joseph Zinszer executed with his wife a quitclaim deed, conveying the property involved in this suit to Irma M. Dozier, his wife's sister, and the said Irma M. Dozier in turn conveyed the property by quitclaim deed, dated July 20, 1914, to the said Lorena M. Zinszer. In May, 1917, the said Lorena Zinszer obtained a decree divorcing her from the said Joseph. She subsequently married, and is now Lorena Jennings. Irma Dozier is also married, and known as Irma Loehr. Mrs. Jennings and Mrs. Loehr were each made parties respondent to the original bill together with Joseph Zinszer, the latter filed a cross-bill seeking to have annulled and declared void the deed executed by himself and his wife dated July 18, 1914, conveying the property involved in this suit to the respondent Irma M. Loehr. In the execution of this deed Mrs. Loehr was used as a mere conduit of title, the conveyance being intended for the benefit of the wife, Lorena, and for the purposes of this case may be referred to as a conveyance to the wife.

The cross-bill sought the annullment of this deed upon the ground of undue influence and, also, that the grantor, Joseph Zinszer, was so greatly under the influence of intoxicating liquors at the time of its execution that he was mentally incapacitated from entering into or understanding any business transaction. Much testimony was taken upon these issues, a large portion of which was heard orally before the chancellor. Upon submission of the cause for final decree on pleadings and proof, the chancellor rendered a decree dismissing the original bill and cross-bill, from which both the complainant to the original bill and the cross-complainant have prosecuted an appeal.

The question of first importance presented here for consideration relates to the proper construction of the will of Peter Zinszer, deceased, which is reproduced in the report of the case.

It is insisted on behalf of complainant that under the terms of this will there was vested in the widow an estate in fee to the property here in question, subject to be divested as to the remainder interest upon the contingency of her son, Joseph, surviving her. While the appellees insist that under the express language of the will the widow only obtained a life estate in this property, the remainder interest being undisposed of by the will vested upon the death of Peter Zinszer in his son, Joseph, and that his former wife Lorena Jennings is now the owner of such interest by virtue of the quitclaim deeds above referred to.

In the second paragraph of the will his son, Joseph, is given certain jewelry, and in the third paragraph the real estate situated in Woodlawn. The remainder of the personal property was in the succeeding paragraph given to the widow.

The property here involved comes under the fifth paragraph of the will, which reads as follows:

"To my beloved wife, Rosa Zinszer, I give and bequeath and devise all of my real estate not heretofore disposed of to have and to hold for and during the term of her natural life to her sole and separate use and not to be subject to the control debts or liabilities of any future husband which she may have."

Very clearly, if a life estate to the widow was intended the language used is direct and appropriate to that end. As said in Railsback v. Gordon, 28 Ind.App. 97, 62 N.E. 99:

"The meaning of this language is plain and explicit. No better words could have been used to create a life estate in the widow of the testator." See, also, Mixter v. Woodcock, 147 Mass. 613, 18 N.E. 573.

But it is insisted that the will shows an intention on the part of the testator to dispose of his entire estate, and that the seventh paragraph in connection with the entire will discloses that the testator intended the remainder of the real estate to vest in the widow in fee, to be divested, however, in the event of her death before her son.

Counsel for appellees, however, suggest that by this paragraph the testator merely expressed an acquiescence in the law of descent and distribution, following a similar expression in the sixth paragraph wherein it was provided that if the son should die before...