This is a suit which was filed in the equity court seeking to have certain lands situated in Russell County, Alabama, sold for division. The estates of the appellant, Edna Tillman, and of the appellees, Ernest L. Tillman and others, are determined by the will of Emmett Thomas Tillman, deceased. The bill seeks a construction of this will. The demurrer of the appellant was overruled and this appeal is from that ruling.
The question for decision is whether tenancies in common in the lands exist between the parties and as such can be sold for division before the death or remarriage of the widow, Edna Tillman.
A copy of the will is attached to the bill, marked Exhibit A and made a part thereof. The allegations of the bill show that the appellant Edna Tillman is the widow of the decedent and the appellees are the brothers and sisters (or their descendants) of the decedent. The allegations of the bill further show that the lands described in the bill of complaint belonged to Emmett Thomas Tillman, deceased, who left surviving him his widow Edna Tillman, who is the executrix of the last will and testament of Emmett Thomas Tillman, deceased, under appointment of the Probate Court of Russell County. Nine separate parcels of real estate are described in the bill as the real estate sought to be sold. Expressly excepted from the bill is the house and lot which was the house and lot occupied by Ernest T. Tillman as a place of residence at the time of his death and now occupied by the respondent, Edna Tillman, as a place of residence.
Items four and five of the will provide as follows:
It is further alleged that all the debts of the decedent have been paid and all cash legacies provided in the will have been paid. It is not alleged in the bill that Mrs. Edna Jefferies Tillman has died or that she has remarried.
I. Item IV of the will of Emmett Thomas Tillman, deceased, devised to his wife Edna Jefferies Tillman one-half of the income from his estate so long as she remained unmarried and in the event of her death or in the event of her remarriage, he devised all his real and personal property to his brothers and sisters in equal parts, share and share alike, per stirpes. We consider that this is clearly a devise of a life estate of an undivided one-half interest to the wife, unless sooner terminated by remarriage, with a remainder over to the brothers and sisters of the testator because "a devise of the rents and profits of property real or personal, without limit as to time and without a gift over, carries a fee to the devisee, unless a contrary intention appears." Roberts v. Cleveland, 222 Ala. 256, 132 So. 314, 316; Jordan v. Walker, 201 Ala. 248, 77 So. 838.
Under Item IV of the will the testator also devised the other one-half of the income from his estate for and during the term of the natural life of the wife, to be divided equally between his brothers and sisters, share and share alike, and upon the death or remarriage of the wife, then the same is devised to his brothers and sisters in fee simple. Here there is a devise of the rents and profits for the life of the wife with the remainder over on her death to the same devisees. We consider that the legal effect of these devises is to vest in the brothers and sisters an undivided one-half interest in the testator's lands in fee simple. Authorities supra.
In this connection we should consider whether the remainder to the brothers and sisters is vested or contingent. The authorities on this proposition are reviewed in Springer v. Vickers, 259 Ala. 465, 66 So.2d 740, 743, from which we quote as follows:
To the same effect see the following cases: Allen v. Maxwell, 249 Ala. 655, 660, 32 So.2d 699; George v. Widemire, 242 Ala. 579, 585, 7 So.2d 269; Pearce v. Pearce, 199 Ala. 491, 496, 74 So. 952.
Furthermore we refer to another apt and familiar rule as stated in Allen v. Maxwell, supra [249 Ala. 655, 32 So.2d 705]; and Duncan v. De Yampert, supra, as follows:
When the will is construed in the light of the rules to which we have referred,
The decedent had one brother who preceded him in death and left surviving him children. It appears to be agreed that these children are legally entitled to take the interest of their father under the will.
We have concluded that the will vested an undivided one-half interest in fee simple in the brothers and sisters of the decedent as of the date of the testator's death and a life estate in the widow as to an undivided one-half interest with a vested remainder in the brothers and sisters.
It seems to us that the only other question presented is whether it was the intention of the testator that the estate should be kept together for the life of the widow or until her remarriage. To put it differently is the right to sell postponed until the death or remarriage of the widow? We find nothing in the will to show such an intention. On the contrary, it would have been a simple matter for the testator to have stated that the estate should be kept together. Under Item V of the will, the appellant was simply appointed as Executrix. She is not relieved from giving bond (§ 97, Title 61, Code of 1940) or from making reports. She is given no authority to manage and control the real estate or to collect the rents and profits or to otherwise manage or utilize the estate.
We think this case should be distinguished from Orr v. Helms, 217 Ala. 603, 117 So. 61. In the case here referred to, words of survivorship are used in the will and the decision is based entirely on the survival provision of the case. The reasoning in the instant case is more in accordance with the case of Hardeman v. Hardeman, 202 Ala. 18, 79 So. 356, although that case went off on the power of sale contained in the will.
We consider that the construction placed on the will by the appellee is in keeping with the intention of the testator. Partition and sales for division are permitted to avoid the mischief growing out of assertions by cotenants of their right to be in possession of every part of the land to the harassment of others having the same right. Hamby v. Hamby, 165 Ala. 171, 51 So. 732. The widow and the brothers and sisters of the decedent are undoubtedly tenants in common. See Mizell v. Walley, 253 Ala. 302, 44 So.2d 764.
In conclusion we say that a sale for division does not appear to us to cut down in any manner the gift to the wife. It does not in any manner deprive her of the income devised to her by the testator. On such a sale one-half of the proceeds of the sale can be invested under the direction of the court for the benefit of the wife for her life and she will receive the full income therefrom. § 189, Title 47, Code of 1940. The intention of the testator is not thwarted
Our conclusion is that there was no error in overruling appellant's demurrer and the decree of the lower court should be affirmed.
LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur.