Wright v. City of Tuscaloosa

• Decision Date: 02 June 1938
• Docket Number: 6 Div. 208.
• Citation: 236 Ala. 374,182 So. 72
• Parties: WRIGHT v. CITY OF TUSCALOOSA ET AL.
• Court: Alabama Supreme Court

182 So. 72

236 Ala. 374

WRIGHT v. CITY OF TUSCALOOSA ET AL.

6 Div. 208.

Supreme Court of Alabama

June 2, 1938

Rehearing Denied June 30, 1938.

Appeal from Circuit Court, Tuscaloosa County; Henry B. Foster Judge.

Proceeding to condemn lands by the City of Tuscaloosa against J. Asa Rountree, III, a minor (for whom Reuben H. Wright was appointed guardian ad litem), and others, after judgment in which the named defendant and others propounded claims to the award or some part of it. From a decree of the circuit court in equity, to which the proceedings were transferred from the Probate Court, limiting the right, title, or interest of the named defendant in and to lands condemned or the proceeds thereof, to such interest as he inherited from his mother subject to any liens or encumbrances thereon at the time of her death, and subject to the life estate of his father and liens or encumbrances thereon, Reuben H. Wright as guardian ad litem for J. Asa Rountree, III, appeals.

Reversed and remanded.

Reuben H. Wright, W. Tunstall Searcy, and Ward W. McFarland, all of Tuscaloosa, for appellant.

Foster, Rice & Foster, McQueen, McQueen & McQueen, Jones & Dominick, Ward & Ward, and Penick & Mustin, all of Tuscaloosa, for appellees.

KNIGHT Justice.

This appeal involves the right to and disposition of a certain fund paid into court by the City of Tuscaloosa for certain land condemned on due proceedings instituted in the Probate Court of Tuscaloosa County by said city. The land so condemned was a part of the Cherokee Place, formerly the property of Mrs. Cherokee M. J. Hargrove. The respondents in the condemnation proceedings were Mrs. Minnie C. Van de Graaff, a daughter of the said Mrs. Hargrove, and Mrs. Van de Graaff's children and grandchildren, and certain judgment creditors, mortgagees and grantees of Mrs. Van de Graaff and her children.

A construction of the will of Mrs. Cherokee M. J. Hargrove, deceased, is necessary to determine the issues involved in this proceeding.

Mrs. Hargrove, the testatrix, on February 7, 1903, executed her last will and testament.

At that time she was on her death bed, and died on March 4, 1903, in Tuscaloosa County, Alabama.

The testatrix left her surviving only two children, Mrs. Minnie C. Van de Graaff, who is still living, and now more than seventy years of age; and Robert J. Hargrove.

At the time of the execution of the will in question, and at the time of the death of Mrs. Hargrove, Mrs. Van de Graaff had five children. For convenience we here state the names and dates of birth of said children and also dates of death of such as have died since the death of the testatrix:

(1) Adrian V. Van de Graaff, who was born September 6, 1891, and who died intestate on March 14, 1936, without having married.

(2) Coleman Hargrove Van de Graaff, who was born September 7, 1893, and who died intestate on January 2, 1938, without having married.

(3) William T. Van de Graaff, who was born October 27, 1895, and who is now living, and has two children.

(4) Cherokee V. Rountree, who was born July 15, 1898, and who died intestate on March 21, 1934, leaving only one child, J. Asa Rountree, III, and who is now about ten years of age.

(5) Robert J. Van de Graaff, who was born December 20, 1901, and who is married and is still living.

Robert J. Hargrove, son of testatrix, was not married at the date of the death of his said mother, but married thereafter, and died on August 30, 1909, leaving a widow, Louise Brown Hargrove, and one child then surviving. In 1918, the child of said Robert J. Hargrove died leaving no brothers or sisters, nor descendants of any child or children, but leaving his mother, the said Louise Brown Hargrove as his sole heir at law.

The preamble to the will is in the following words: "Considering the uncertainty of human life, and desiring to dispose of my worldly possession as to best provide for the well being of my family, I, the undersigned, C.J. Hargrove, hereby make and publish this my last will and testament."

The first clause of the will of Mrs. Hargrove simply makes provision for the payment of debts by her executors.

The third and sixth are the only clauses pertinent and material, in determining the question now before us. We therefore set them out in their language:

"Third: I give and devise my plantation, known as the Cherokee Place, near Northport in Tuskaloosa County, State of Alabama, including the entire tract of about 3500 acres, to my two children, Minnie C. Van de Graaff and Robert J. Hargrove, for them to have, hold, use and enjoy the rents and profits therefrom for the terms of their natural lives, each to have an equal moiety in said rents and profits: but it is my will and I so direct that no part or parcel of said tract of land and no interest in the same except said rents and profits shall ever be liable for any debts contracted by the said Minnie C. Van de Graaff and Robert J. Hargrove. I further will and direct that after the death of my daughter, Minnie C. Van de Graaff, an undivided one half interest in said Cherokee Place shall descend to and be the property, absolutely of her lineal descendants: and after the death of the said Robert J. Hargrove I will and direct that the other one half interest in said Cherokee Place shall descend to and become absolutely the property of the lineal descendants of the said Robert J. Hargrove; and should the said Robert J. Hargrove die without leaving any lineal descendants, then it is my will and I so direct that the lineal descendants of the said Minnie C. V an de Graaff shall take and hold absolutely and in fee simple the entire Cherokee Place."

"Sixth: I hereby appoint my daughter Minnie C. Van de Graaff and my son Robert J. Hargrove, the executors of this will; and I especially direct that they shall not be required to give any bond as such executors, nor shall they be required to make inventory of my estate or any report of any kind concerning the execution of this will to any of the courts of this state. I give my above named executors full power and control over my estate to manage and control the same as they may see fit and proper for the best interests of the same, and give them power to sell and convey any property they may desire to sell, either for the purpose of paying debts or for distribution. In the event of the death of either of my executors the other is hereby vested with all the powers hereby conferred on them both. In giving my said executors power to sell and dispose of property belonging to my estate I hereby expressly except the tract or place known as the Cherokee Place, it being my express will and desire that they shall have no control of that place except as to the rents and profits."

Rules of construction adopted by the courts were and are intended to aid the court in arriving at, and giving effect to, the intention of the testator, when, by the language employed, doubt exists as to the true purpose and intention of the testator.

It is said in all our decisions, as well as in the decisions of the courts of other jurisdictions, that the cardinal rule, and the one above all others to be followed, is to ascertain the intention of the testator, and give it effect if not in contravention of some rule or principle of law. O'Connell v. O'Connell, 196 Ala. 224, 72 So. 81; Betts v. Renfro et al., 226 Ala. 635, 148 So. 406.

Likewise this Court, in line with other courts, is firmly committed to the rule that the law favors "a vested rather than a contingent remainder." McGlathery v. Meeks, 219 Ala. 89, 121 So. 67, 70. And it must also be conceded that the law will not construe a limitation in a will into an executory devise when it can, without doing violence to the intention of the testator, be given the effect as a remainder, "nor a remainder to be contingent when it can be taken to be vested." Duncan v. De Yampert, et al., 182 Ala. 528, 62 So. 673, 674; Doe v. Considine, 6 Wall. 458, 476, 18 L.Ed. 869; Bruce v. Bissell, 119 Ind. 525, 22 N.E. 4, 12 Am.St.Rep. 436.

It must also be recognized that the "law favors the construction by which the estate is regarded as vested rather than contingent, or by which it will become vested at the earliest moment," and this being true, it is held "that the intent to postpone the vesting of an estate must be clear, and not arise from mere inference or construction." Duncan v. De Yampert, supra; Pearce v. Pearce, 199 Ala. 491, 74 So. 952, 954.

Best, C.J., in Duffield v. Duffield, 1 Dow. & C. 311, observed: That all estates are to be holden to be vested, except estates in the devise of which a condition precedent is so clearly expressed that the courts cannot treat them as vested without deciding in direct opposition to the terms of the will. And this Court, in the case of Phinizy v. Foster, 90 Ala. 262, 7 So. 836, which was a well considered and many times cited case, in an opinion by Clopton, J., said of the above rule declared by Best, C.J., in the case of Duffield v. Duffield, supra; "The rule is generally applied when the intention of the testator is obscure and doubtful. It has no application when the intention to create contingent legacies or devises is clear. In respect to each of the rules, the intention of the testator, as shown by the words employed by him, must control." (Italics supplied).

In the case of Watters v. First National Bank of Mobile, 233 Ala. 227, 171 So. 280, it was observed (page 287) "Much stress is laid upon the principle that the law inclines to regard legacies as vested, rather than contingent, and the numerous authorities noted by the chancellor so announce this rule. But the basis of this rule rests in the presumption that the testator had in view the interest of the legatee who is the object...