This is an appeal from a decree overruling demurrer to a bill in equity seeking to sell real estate for division of the proceeds among the persons alleged to own it as tenants in common.
It is alleged that the land was owned by O. M. Cawthon, deceased, who died testate November 4, 1935, and was survived by a widow, and one daughter named Lucy. The widow is still living. The daughter died November 20, 1958, and left no child or children surviving her.
O. M. Cawthon was survived also by three sisters, and the child of a deceased
Two nieces are complainants. The other nieces and nephews are respondents. Certain other persons who claim under a deed executed by one of testator's sisters after his death are also respondents. The widow of testator is also a respondent. The appellant, who is a respondent, is alleged to be the devisee of testator's daughter, Lucy. From the decree overruling his demurrer to the bill, appellant brings this appeal.
Appellant argues that his demurrer should have been sustained because the averments of the bill fail to show that complainants have an interest in the lands which they seek to have sold.
This court has said that a bill in equity to sell lands for division among tenants in common should disclose that the parties to the bill, complainant and respondent, are the sole owners of the lands, the interest of each of the parties therein, that the same cannot be equitably divided without a sale for that purpose, and should describe the lands sought to be sold with that certainty required in judicial sales of realty. In alleging such ownership, it is not necessary to set out the source of title relied on by the tenants in common, nor describe the manner in which they or their ancestor acquired it. If, however, complainant does undertake to show the source of the parties' title or equitable interest, he must allege facts which clearly show good title or a perfect equity. If he fails to do so, the bill is insufficient and subject to demurrer even though a sufficient general averment of interest is contained in another paragraph of the bill. Bowden v. Teague, 266 Ala. 30, 93 So.2d 408.
In the instant bill, complainants have undertaken to show the source of the title of the parties. Under the rule above set out, the complainants must allege facts which clearly show good title or a perfect equity. If the facts alleged show title in complainants, the court did not err in overruling the grounds of demurrer now insisted on by appellant. On the other hand, if the facts alleged do not show title in complainants, the demurrer ought to have been sustained.
If complainants have any title to the lands sought to be sold, complainants acquired that title under and by virtue of the will of O. M. Cawthon, deceased, a copy of which is an exhibit to the bill.
The will is dated February 18, 1935. Testator died November 4, 1935. The will was probated November 12, 1935. Testator's daughter, Lucy, died November 20, 1958. The bill of complaint was filed December 18, 1958.
The will contains fourteen items. Item One directs payment of debts. Items Two to Seven, both inclusive, and Items Ten and Eleven are specific bequests of personalty. Item Fourteen appoints executors. Items Eight, Nine, Twelve, and Thirteen with which this appeal is concerned recite as follows:
The real estate here involved is not that disposed of by Items Eight or Nine, but is part of the residuary estate devised by Items Twelve and Thirteen. There is no dispute as to the life estates which were devised to widow and daughter. The dispute is as to the right to the remainder interests which were created by Item Thirteen.
The bill of complaint alleges that Benie Cothran Cawthon, the widow of testator, conveyed her life estate in 25% to the daughter, Lucy, by deed dated May 15, 1946, and that said estate for the life of the widow in 25% was devised by the will of the daughter, Lucy, to appellant. We think it is a fair inference from the averments of the bill, although not stated clearly, that the interest, if any, which the daughter took in the remainder or reversion, by the will of her father, has been transferred to appellant. On that inference, the contest here is between the devisee of the daughter, the appellant, on one hand, and the descendants of the brother and sisters of the testator, the appellees, who are the complainants in the bill, on the other hand.
Appellant contends that under the will, the daughter took not only a life estate in 75%, but also a remainder interest in 100% of the residuary real estate. The appellees contend that the remainder in 100% vested in the descendants of testator's brother and sisters living at the death of the daughter without children surviving her.
Appellant's contention is stated in brief as follows:
Appellees' contention is stated in their brief as follows:
Appellees, as well as appellant, cite Betts v. Renfro, 226 Ala. 635, 148 So. 406, wherein the following rules are stated:
The cardinal rule, and one above all others for the construction of wills, is to ascertain the intention of the testator, and give it effect if not prohibited by law. Rules of construction are adopted as an aid to the court in ascertaining the intention of the testator when doubtful from the provisions of the will, but the intention of the testator is always the polestar in the construction of wills. Betts v. Renfro, supra.
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 time is usually at the death of the testator. The intent to postpone the vesting of an estate must be clear, and not arise from mere inference or construction. Betts v. Renfro, supra.
The rule is that where an estate or interest is given in one clause of a will, in clear and decisive terms, the interest so given cannot be taken away or cut down by raising a doubt upon the extent and meaning of a subsequent clause, nor by inference therefrom, nor by any subsequent words that are not as clear and decisive as the words of the clause giving the interest or estate. Duncan v. De Yampert et al., 182 Ala. 528, 62 So. 673; Springer v. Vickers, 259 Ala. 465, 66 So.2d 740.
In this state the rule has been long declared that apparently conflicting clauses must, if possible, be so reconciled as to make each operative. Springer v. Vickers, supra.
Appellant's argument is that the will shows that the testator determined to give his only child, the daughter, an estate for her life only, if she left children, so as to provide for testator's grandchildren; but that he was content, if the daughter left no descendant, for the remainder interest in the real estate to continue in his next of kin, his daughter, as if he had died intestate.
In a number of cases involving wills where an estate for life was devised to testator's only heir, with remainder to the issue of such heir, and on failure of such issue to testator's heirs, courts have decided that the life tenant was included among the heirs of testator to whom the remainder was devised on failure of issue of the life tenant; and, that on the death of the life tenant, without issue, testator's heirs, and not those living persons who at that later time answered the description of heirs of the testator, took the remainder in fee simple.
Such a case is Himmel v. Himmel, 294 Ill. 557, 128 N.E. 641, 13 A.L.R. 608, which is cited by appellant. See also: 20 A.L.R. 356; 30 A.L.R. 915; 61 A.L.R. 1011; 49 A.L.R. 174; 127 A.L.R. 602; 169 A.L.R. 207; 30 A.L.R.2d 393.
In Himmel v. Himmel, supra, the testatrix devised real estate to her son for his natural life, and "Upon the decease of my said son I hereby direct that all my said real estate heretofore devised to him for * * * life vest in fee simple in the issue of my said son surviving him, * * * but should he die without leaving issue surviving him, then it is my will that such real estate revert and go to my heirs as if no will had been made." The son was the only heir of testatrix at her death. He died without issue fifteen years after the death of testatrix. The half brothers and sisters of testatrix filed suit for partition. The controversy was whether the devise of the remainder was to those who were heirs of testatrix at the time of her death or to those who were such heirs at the death of the life tenant. The court said the word "heir," in its primary meaning designates the person appointed by law to succeed to the estate in case of intestacy; and where the word occurs in a will, it will be held to apply to those who are heirs of the testator
In the Himmel case, the court apparently concluded that the will did not express an intention that the "heirs" who would finally take the remainder should be determined at the death of the life tenant and held that the heirs were to be determined at the death of the testatrix. The decision was that the estate of the son, the life tenant and only heir of testatrix at her death, took the land in fee.
In a case somewhat like but not the same as the instant case, this court considered a will which provided that at the end of a particular period "`* * * then shall my estate both personal and real descend to my heirs in common.' * * *." This court said: "* * * It was `my heirs' who were named as the remaindermen. This related to the date of his death to ascertain who answered to that description. * * *" The court held that, under the will, the remainder vested in all the six daughters who were the heirs of testator at the time of his death, although three of them were devisees of the precedent estate. The principles here pertinent were stated as follows:
The remainder in the instant will was devised, not to the heirs or heirs at law of testator, but to his "next of kin."
The difference between the term, heirs, and the term, next of kin, is not, however, as it seems to us, of significance here. The daughter, Lucy, was testator's next of kin, as well as his heir, at the date of the will and also at his death. If the next of kin who take the remainder are to be determined at testator's death, his daughter, and through her the appellant, takes. If the next of kin are to be determined at the
On careful examination of all cases cited in the briefs, and some of the scores of others cited in the annotations in A.L.R., supra, we are of opinion that the correct rule of construction to be applied here may be stated as follows:
In the absence of a clear and unambiguous indication of a different intention on the part of the testator, a class described as testator's "heirs" or "next of kin," to whom a remainder or executory interest is given by the will, is to be ascertained as of the time of the death of the testator; and, the circumstance that the heirs or next of kin so determined are also the devisees of precedent estates in the same property, alone, is not sufficient to prevent the application of the general rule or overcome the presumption that such heirs or next of kin are to be determined at the time of testator's death. The circumstance that the devisee of the precedent estate is the sole heir is insufficient, in and of itself, to show that the testator intended that his heirs or next of kin be ascertained at any time other than the time of his own death.
We will repeat that where the will affords clear and unambiguous indication of the intent of testator that the heirs or next of kin be determined at a different time, the testator's intent, so indicated, will be given effect.
These principles, we think, are to be found in our cases. O'Connell v. O'Connell, 196 Ala. 224, 72 So. 81; Wilson v. Ward, 224 Ala. 147, 138 So. 826; Wilcoxen v. Owen, 237 Ala. 169, 185 So. 897, 125 A.L.R. 539; Jones v. Glenn, 248 Ala. 452, 28 So.2d 198; Allen v. Maxwell, 249 Ala. 655, 32 So.2d 699; Springer v. Vickers, supra.
In Item Twelve of his will, O. M. Cawthon devised the residue of his estate, in the percentages set out, to his wife and daughter. The item closes with direction to executors to execute deeds to the realty to his devisees, but the deeds shall "devise" the property for the time provided in the will. In Item Thirteen testator undertook to provide the time.
Item Thirteen contains four sentences which we will sometimes refer to as clauses. The first clause gives a life estate to the wife, in 25% of the residual realty, with remainder to "vest" in his daughter "* * * if she be living * * *." and, if she be dead to her surviving children. The necessary and inescapable import of the first clause, regarded as speaking at testator's death, is to give the daughter a vested remainder in the 25% allotted to the wife, if the daughter be living at testator's death. She was living at that time.
If the second clause be regarded as speaking at testator's death, it provides that if the daughter die without surviving issue, before testator dies and also before the wife dies, remainder in wife's 25% shall vest in testator's next of kin who are living at his death. That, we think, is the correct construction of the second clause. Such construction avoids conflict with the first clause and accords with the rule that a will speaks as of the time of testator's death. If the second clause be regarded as speaking as of a time after testator's death, it provides that if the daughter die without surviving issue, after testator dies but before the wife dies, remainder in wife's 25% shall vest in testator's next of kin. Such a vesting in the next of kin conflicts with the prior vesting in the daughter. We do not think the language will justify such a construction.
Having disposed of the remainder in wife's 25% in the first and second clauses, testator proceeds, in the third and fourth clauses, to dispose of the remainder in the daughter's 75%. Such we think is a reasonable construction which will avoid conflicts. The third clause begins with the provision that the daughter shall receive a "life estate only" in "any" real estate, other than that devised in Items Eight and
In Gilman v. Congregational Home Missionary Society, 276 Mass. 580, 177 N.E. 621, the court considered the question whether the testator intended that those who should take after a precedent estate were to be his heirs at law, or those who would have been his heirs at law if he had died a moment subsequent to the death of his daughter who was the devisee of a precedent estate devised to her "for and during the term of her natural life only". In considering the effect of the word "only," the court had this to say:
We are of opinion that the word, "only," as used in the third clause of Item Thirteen of O. M. Cawthon's will is merely descriptive of the duration of the estate there granted and does not operate to cut down the vested remainder in the wife's 25% clearly devised to the daughter by the first clause, nor to postpone the time of determining the class who ultimately take the remainder under the fourth clause, nor exclude the daughter from that class.
The third clause contains language slightly different from that in the first clause with reference to the daughter's death. The first clause provides that the remainder vest in the daughter, "if she be living, and if she be dead," in her children. The third clause gives a life estate to daughter and "at her death" the remainder shall vest in her children. If the language of the third clause and also the fourth clause be regarded as speaking, with respect to the daughter's death, of a time after testator's death, even so, there is nothing to indicate that the next of kin are to be ascertained at a time other than testator's death
The concluding words of Item Thirteen suggest the time of testator's death. Those words are: "shall vest in my next of kin just as if I had died intestate." Testator did not say: as if I had died intestate at or after the death of my daughter. He did not say: my next of kin then living. An excerpt from an earlier opinion seems appropriate here:
From reading the will, we feel justified in saying that O. M. Cawthon made substantial provision for his wife and daughter, aside from the residue of the real estate. In disposing of the residual realty, testator exhibited a concern for his possible grandchildren, and provided that they should take an interest in that residue if any of them should survive the life tenants. Testator manifested an intention to give his daughter a life estate in 75%, and to preserve the remainder to her children in fee simple, but on failure of such issue, the testator expressed no wish or intention to change the disposition which the law would have made of this residual realty if he had made no will. Testator expressed all he desired in limiting the estate to his daughter for life and the fee to her issue if she should have any, and if none, then testator was content for the realty to pass by the statute of descents.
We are of opinion that there is no clear and unambiguous indication of an intention that the next of kin be determined at a time other than the time of testator's death. The daughter was his next of kin at that time.
So construed, the will passed nothing to complainants and they have failed to show an interest in the lands in suit. As a consequence, we are further of opinion that the grounds of demurrer taking that point should have been sustained.
The decree is reversed, and a decree will be here rendered sustaining the demurrer to the bill as a whole and to each of its aspects, and the cause is remanded.
Reversed, rendered and remanded.
LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur.