This appeal is from a decree sustaining a demurrer to a bill of complaint. The appeal was taken prior to September 15,
The bill sought a construction of Item 2 of the will of M. S. Wadsworth, which was probated in Autauga County in 1912. The trial court sustained the demurrer on the ground that the provisions of Item 2 violated the Alabama rule against perpetuities, as that rule existed in 1912, in so far as appellant was concerned.
The statute then in effect was § 3417, Code 1907, which provided:
Appellant is a grandchild of the testator, being a child of one of the several children of M. S. and Mary C. Wadsworth. Appellant, claiming to be a remainderman under the will, joined as parties respondent the now living children and grandchildren of M. S. and Mary.
After alleging the probate of the will, setting forth its provisions, and alleging the interests of the parties in the subject matter of the litigation, the amended bill further alleges that the demurring respondents:
The bill prays among other things that the fee of the Pope Place be declared to be in the grandchildren subject to the life interests of the children.
Appellees argue that the use of the word "or" in the granting or devising clause violates § 3417, Code 1907, in that it is not absolutely certain that the future interests devised will vest within the prescribed period, i. e., three lives in being and ten
It can readily be seen that the bequest of "the remainder over to the children of the said Mary C. Wadsworth" could include children of Mary by an earlier husband than the testator and she could have had as many as four living children at the time of the testator's death. This fact would have extended the vesting of the future interests beyond three lives in being and ten years thereafter.
The same result could be reached if Mary married after the testator's death and had children by the second marriage.
Following this devise, the testator used the word "or" and then described a class that would not be in violation of the statute, namely, to his and Mary's children and "to the heirs of their body."
The "habendum clause" following "my Pope place" shows that the devisees are limited in two instances to Mary's children born "as the result of her marriage with me." This part of Item 2 is definitely not violative of the rule against perpetuities under § 3417, Code 1907.
Appellant, in oral argument, conceded that if the will is construed to apply to a child of Mary, not fathered by the testator, then it does violate § 3417, Code 1907. But appellant contends that a reading of Item 2 as a whole shows that a different construction can be given to the will.
In a fine article by Professor W. Barton Leach, "Perpetuities In A Nutshell," 51 Harvard Law Review 638, at 642, we read:
Under this statement, the devise to Mary's children was too uncertain. But the succeeding sentences would not render it too uncertain.
The appellant is a "person interested" under the will as described in our declaratory judgment statute, Tit. 7, § 159, and is entitled to have the will construed in this action. Robinson v. Robinson, 3 Div. 979, Ala., 136 So.2d 889.
It is well settled that it is usual for the court to require an answer and hearing on the pleadings and proof, and not to proceed with a construction of the will by acting on a demurrer. Fillmore v. Yarbrough, 246 Ala. 375, 20 So.2d 792; Gant v. McCarty, 242 Ala. 350, 6 So.2d 17.
The fundamental rule in the construction of wills is that the intention of the testator is the controlling factor, and his intent must be gathered from the will in its entirety, and each clause or provision should be so interpreted as to avoid an irreconcilable conflict when reasonably susceptible of such a construction. Sewell v. Byars, 271 Ala. 148, 122 So.2d 398; Orr v. Helms, 217 Ala. 603, 117 So. 61.
We hold that the bill shows that appellant is entitled to have a construction of the will; that Item 2 of the will requires a construction, that an answer and testimony will probably aid the trial court
Reversed and remanded.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur.