Woodroof v. Hundley

• Decision Date: 30 June 1905
• Citation: 39 So. 907,147 Ala. 287
• Parties: WOODROOF ET AL. v. HUNDLEY.
• Court: Alabama Supreme Court

39 So. 907

147 Ala. 287

WOODROOF ET AL. v. HUNDLEY.

Supreme Court of Alabama

June 30, 1905

Appeal from Chancery Court, Limestone County; W. H. Simpson Chancellor.

"To be officially reported."

Bill by John H. Hundley, executor of Mary Ann Walton, deceased against James W. Woodroof and others, for the construction of the will of the deceased. From a decree construing the will defendants appeal. Affirmed.

Rehearing denied January 30, 1906.

Item 14 of the will, discussed in this opinion, is as follows "The balance of my real estate consists of the plantation, containing about 600 acres, known as the 'Oakwood Place,' and upon which is situated the family graveyard. I give and bequeath this land (with the exception of the graveyard, containing four acres) to John Hundley, G. W. Mitchell, and James Sloss, in trust to rent the same and apply the proceeds to such objects of charity and benevolence as the Presbytery of the State of Alabama of the Cumberland Presbyterian Church may indicate or designate; and, should this devise fail, then the said trustees shall apply the proceeds to the maintenance and education of young men preparing for the ministry in the Cumberland Presbyterian Church, or in any other Protestant church, said young men to be selected by the said trustees or any two of them. I add to this legacy the residuum of my estate."

As qualifying this, item 15 is as follows: "Out of the rents of Oakwood, I will and desire that said graveyard be kept up in its fencing and so as to inclose said four acres decently, and to keep the right of way in good condition and repair."

J. E. Horton, Jr., and Erle Pettus, for appellant McDonald. Cabaniss & Willingham and Cabaniss & Weakley, for appellant children. R. W. Walker, Milton Humes, and W. T. Sanders, for appellant Woodroof. Thomas C. McClellan, for appellee trustees. Oscar R. Hundley and Harris & Eyster, for appellee Hundley.

TYSON J.

This appeal involves only two questions: One, relating to the effect of the lapse of certain legacies; the other, touching the validity of a charity. The eleventh clause of the will of the testatrix is as follows: "All the balance of the money now on hand, and of which I die possessed, after the payment of my just debts and the legacies mentioned herein, I give and bequeath to Walton McDonald, son of J. N. and Maggie McDonald, of Williamson county, Tennessee. By 'money' herein I mean gold and silver coin and currency, wherever deposited or situated." Among the legacies were two of $1,000 each to persons who died during the life of the testatrix. The chancellor, in construing the will, held that these legacies fell into the general residuum. This ruling is assigned as error by appellant McDonald.

Of course, the lapse of legacies which are primarily a charge on the "money" of the testatrix will lessen that much such charges, and in that way will give to the legatee entitled to the balance of the money the benefit of the lapse; but the lapsed legacies themselves, as a charge upon the whole of the testatrix's property, ceased to be of any effect whatever, precisely as if they had never been inserted in the will, and therefore ceased to be a charge against the residuum of the estate. The testatrix, it appears, was at the date of her will about to undergo a dangerous surgical operation, and immediate death was contemplated as a possible result. In that view the testatrix uses in this clause, in reference to her money, the words, "now on hand." At the same time she contemplated that she might not die, and that consequently the words "now on hand" might create difficulty in their application to conditions existing at her death in after years. Therefore she made the clause ambulatory and applicable to her death at any time by the additional words "and of which I die possessed." There seems to be no difficulty whatever about the construction. The bequest only applies to the money "possessed" at her death, and only covers such money as is left after paying the valid charges put upon such money, and therefore the legatee of "the balance" only has the indirect advantage of lapsed legacies by the cancellation of such legacies as charges.

The testatrix by the fourteenth clause of her will gave certain real property and the residue of her estate to three trustees for a charity which was held invalid by the lower court, and provided an alternative bequest for a different charity "should this [the first] devise fail." The court held the alternative devise valid, and this ruling is assigned as error. The devise is that "the said trustees shall apply the proceeds [increase of the property] to the maintenance and education of young men preparing for the ministry of the Cumberland Presbyterian Church, or in any other Protestant church; said young men to be selected by said trustees, or any two of them." By the next clause (15) it is provided that a designated family graveyard of four acres, included in the tract of land devised by the fourteenth clause, but excluded from the devise itself, shall be inclosed and kept up out of the rents of the land devoted to the charity. There being no assignment of error relating to the primary scheme of charity, we will consider only the objections to the alternative scheme above set out.

It is insisted that the testatrix did not intend or declare a permanent...