Opinion
8 Div. 868, 868-A.
December 16, 1926. Rehearing Denied, with Modification, June 23, 1927.
Appeal from Circuit Court, Madison County; J. E. Horton, Judge.
Spragins Speake, of Huntsville, for appellant.
Lizzie Louise Watkins was married, within the meaning of the will. The word "married," as used in the will, should be given the meaning intended by the testatrix. 40 Cyc. 1396, 1399, 1400. It was the evident purpose of the will to exclude Carter Spottswood Crute. Steele v. Crute, 208 Ala. 2, 93 So. 694. The lien created by Bertha Patterson is not a lien on appellant's property. Steele v. Crute, supra; 38 Cyc. 101, 102, 108, 109.
Cooper Cooper, of Huntsville, for appellee John C. Stannard.
When one of the legatees named in the second item married or died, his or her interest in the property ceased. Birdie Crute having survived them all, her devisee took by inheritance from her. Steele v. Crute, 208 Ala. 2, 93 So. 694.
The case is tried upon an agreed statement of fact, with all the parties at interest before the court. The words "and owned," after the words "to be held," in the second paragraph of the will, are stricken by the amended pleading of the guardian of Lizzie Louise Watkins, a non compos mentis. The exhibits to the agreed statement of fact contain said words. However, this variance between the pleading and proof is immaterial. It is necessary that a sale of the properties be ordered to discharge the contract and receivership liens and to effectuate a division among joint owners.
It is the opinion of the court that it was the intention of testatrix to exclude Carter Spottswood Crute from participation in either the temporary status or period of joint tenancy, or in the ultimate ownership or increment therefrom of Mrs. Watkins' properties, real or personal. The temporary joint tenancy was provided for and given the children named for the period and survivorship indicated, and that there was specific devise and bequest of the title and fee to the several persons named — Mrs. Ora Lee Lord, Irene Scruggs Stannard, Birdie Crute, Lizzie Louise Watkins, Lucy Cabaniss Watkins, Sadie Mae Miller, and W. M. Watkins — described by testatrix as "my said six daughters and only son." The repetition of the expression "daughters and only son," and the provision for surviving sisters and brother as to the temporary enjoyment and use, and the fact that no provision was made for Carter Spottswood Crute, as was made for the parties named, indicates the intention to disinherit said Carter Spottswood Crute, and to invest the children named with the temporary joint tenancy or estate for years, and to vest in them the fee or title to all of testator's property.
The foregoing is the result of the expressed intention of testatrix in her effort to provide (during the time and circumstances indicated) "a home and support" for the seven children named, and after the expiration of said joint occupancy and enjoyment that an equal division of the properties she classed as real and personal property as indicated be made among the named children, or in the event of one's death to devisees, legatees, or next of kin under the statutes of descent and distribution. Such is the result of the use of words by testatrix, having the effect of a limitation of the period of common or joint use, occupation, and maintenance; such words as "till all of them marry or die," "final division," "final settlement," "the death of either," and "surviving sisters and brother." That is to say, testatrix held her properties together until the termination of the declared period, fact, or circumstances for joint use and enjoyment, when the indicated and designated "final division" and "final settlement" should then be had, viz. "to be held and owned by my said six daughters, and only son W. M. Watkins, jointly, share and share alike, till all of them marry, or die." It is the opinion of the court that the succeeding clause, for death with or without issue before final division, etc., operated upon the enjoyment of the "home and support" for the period or state — "till all of them marry or die."
Under the agreed statement of facts, and construction given the will, Lizzie Louise Watkins is a married woman under the will, taking from her and Sadie Mae Miller, a married woman (as the only living of said named legatees and devisees) the right of common enjoyment, but not the right of share in final division of the estate vested in them and their brother and sisters named. The period for a "final division" and "final settlement" being at hand according to the terms of the will, it should be made in equity, administering the estate, effectuating partition or division of said properties of testatrix according to the statutes and under the rules provided for such matters in a court of equity.
It follows that testatrix did not die intestate as to any class of her properties, but that the same vested the named children, to be divided when all of them "marry or die." All having died who are not married, and the period of division or final settlement being present, it should be further said by way of construction that (1) the several articles of personal property designated in the will be delivered to the respective daughters indicated, or, as to those being dead, to their legatees or next of kin under the statute; (2) that the articles of personal property embraced in the expression "balance of household articles," and not consumed or destroyed in the common use or occupancy, be divided among the two living daughters and the several legatees or next of kin of the daughters and son who are dead; (3) that the drug store, depleted stock of drugs, and old fixtures passed under the second item of the will, to the several children named, and the additions thereto and betterments in the nature of additional stock, new fixtures, and the lot purchased from the income of the drug business, are, in equity, treated under the will as owned by testatrix, and may be claimed and distributed accordingly; (4) this increment from the joint estate may have been consumed and dissipated entirely by those having the common use thereof.
The fact that a large portion was added, by way of individual effort of the son and daughters remaining at home, to the corpus of Mrs. Watkins' estate by way of additional stock, fixtures, and the lot purchased by Wm. M. Watkins in his representative capacity, will, when claimed by said parties in interest, acquit the executors and administrators of said several joint owners of any such charges as rent or interest, etc. The fact that the doings of one or more of these children with and for the common fund, and during the period of a joint ownership, has been reported to the probate court, and decree entered therein, will not, in equity, subject to liability such joint owner or his or her interest in the corpus of the estate. This is the justice and law of the case, since such joint owners at will may have consumed and wasted said earnings, rather than saved the same and added it to the corpus of the estate, as was done by said brother and sisters.
It follows that any valid conveyances, or lien creating and attaching by virtue of contract, estoppel by said named daughters or son not under disability, or by the order of court and as an election of the court, for the non compos mentis, may now be set up and enforced, the time of a final division of the estate having arrived. The just observation is contained in the final decree that it appears from the evidence and the agreed statement of facts that the money loaned by the defendant Bertha Patterson to Wm. M. Watkins, Irene Crute Stannard, and Birdie Crute was used in the construction of a bungalow on the Randolph street property, known as the residence property, and that "the use of this money has enhanced the value of said property to the amount of $10,000, and she, the said Bertha Patterson," in equity (1) "is entitled to a lien on said property to secure her for the repayment of the balance due her for the money so loaned by her on her said mortgage"; that (2) she also has a claim "against the shares of the property" of the several mortgagors in the other properties of the estate of Mrs. Sallie S. Watkins which is now undisposed of, and also a lien under the mortgage in the share or interest of said Wm. M. Watkins, Irene Crute Stannard, and Birdie Crute, in the lot purchased by Wm. M. Watkins, and conveyance to him in a representative capacity. The last-named lot was purchased by Watkins and paid for by check on the Rison Banking Company, and is subject to the provisions of the will and the mortgage as indicated. And the said cotenants who are mortgagors, and those representing them in the respective estates, have the right of contribution from the other cotenants to the extent of the lawful charges and enhanced value to the common properties under equitable principles (Freeman on Cot. P. [2d Ed.] p. 411 et seq.) and our statutes for partition (Code, §§ 9303, 9334) and constructions thereof by this court. Stokes v. Stokes, 212 Ala. 190, 101 So. 885; Clark v. Whitfield, 213 Ala. 441, 105 So. 200; Phillips v. Smith, 214 Ala. 382, 107 So. 841; Thomas v. Skeggs, 213 Ala. 159, 104 So. 395; Sandlin v. Anders, 210 Ala. 396, 98 So. 299.
It is the duty of a court of equity to see to it that the rights of the non compos mentis have been and are asserted and protected in the premises and under the respective changed conditions of estate, and for that purpose the guardian is under the control of the court, and subject to orders, directions, and elections by the court for such ward, which are effective and binding as touching her interest or estate (McCalley v. Finney, 198 Ala. 462, 73 So. 639; Austin et al. v. Bean, Executor, 101 Ala. 133, 16 So. 41), such orders as may be right in the premises and just to her joint owners, who have honestly acted for the common benefit and the improvement of the corpus of the estate and its real properties.
It should be stated that all of the joint owners who participated or acquiesced in the tearing down of the old dwelling and the building of the new houses, and parties before the court eventuating into receivership, are bound by that action and proceeding, and the court was and is now authorized to elect for the insane party or ward, as is just and according to equitable principles and our statutes, and to make all necessary orders in matters pursuant to a final division of the joint properties among the owners thereof, and to adjust and determine all claims and equities of the several cotenants, and incumbrancers and lienholders, without unnecessary delay, expense, and litigation.
The rehearing is granted to the extent of modifying the opinion rendered on the original hearing and substituting the foregoing construction of the will therefor. The decree of the circuit court is not in full accord with the foregoing construction of the will, and we adhere to the judgment of reversal and remandment of the cause as now rested on the appeal of Mrs. Miller.
Reversed and remanded upon the direct appeal of Mrs. Miller, and the costs of appeal are taxed against John C. Stannard, as executor of the estate of Birdie Crute, deceased, and Young Wall, as guardian of Lizzie L. Watkins, non compos mentis.
ANDERSON, C. J., and SAYRE, SOMERVILLE, GARDNER, BOULDIN, and BROWN, JJ., concur.
THOMAS, J., concurs in the result, and dissents as to the construction given the will.
This will was considered in Steele v. Crute, 208 Ala. 2, 93 So. 694, and the necessary parties were indicated. It is evident that testatrix did not desire that any of her property go to Carter S. Crute, but that the same was given, as indicated, to the seven persons named.
Rules of construction of testamentary instruments need not be repeated here. Ralls v. Johnson, 200 Ala. 178, 75 So. 926; Pearce v. Pearce, 199 Ala. 491, 74 So. 952; Gunter v. Townsend, 202 Ala. 160, 79 So. 644; Jemison v. Brasher, 202 Ala. 578, 81 So. 80; Fowlkes v. Clay, 205 Ala. 523, 88 So. 651; Steele v. Crute, 208 Ala. 2, 93 So. 694; Crawford v. Carlisle, 206 Ala. 379, 89 So. 565; Henderson v. Henderson, 210 Ala. 73, 97 So. 353.
The testamentary intention is the guiding star, and that intention is to be gathered from the whole instrument. The fact that such writings are not always artfully drawn has been taken into consideration in order that a right construction be given. Unless it be clearly apparent from the whole instrument, it should not be held that it was the intent of a testator or testatrix to create intestacy. Caldwell v. Caldwell, 204 Ala. 161, 85 So. 493. And after a careful re-examination, we are impressed that it was the intent of the testatrix that the brother and sisters named take a fee by the will. That instrument shows with its first announcements and words of broad and appropriate disposition of real and personal property, and as to each class to effectuate complete devises and bequests; that it disposes of the absolute interest in personal property is clearly indicated in section "third," and from a consideration of the whole instrument the same construction will be adopted in regard to realty.
We should have observed at the outset that, at the time of filing of the bill, all of the devisees or legatees mentioned in the will had either died or married. The marriage of Lizzie Louise Watkins is treated as a valid marriage, within the meaning of the will, and is unaffected by the decree of annulment. The marriage referred to by Mrs. Watkins in her will was such as Lizzie had contracted. By the relation she had ceased to occupy and enjoy the property, as we shall see, as testatrix had intended. As to this, we may observe that it is the purpose and duty of the courts to ascertain the intention of the testatrix and construe the words employed accordingly. Fowlkes v. Clay, 205 Ala. 523, 88 So. 651; 40 Cyc. p. 1396, § 2; 40 Cyc. pp. 1399, 1400, § E.
Adverting to the specific provisions of the instrument for construction, it will be noted that as to both realty and personalty the will speaks of a "final division," as if that was provided for and took place by reason of the will.
"This could only be true, if a fee was given in realty and an absolute interest in personalty was bequeathed."
The words, "till all of them marry or die," refer to the period of "final division," and not to the extent of the estate taken by the devisees. The second paragraph of section "second" refers to this date as a "final division," at least, this is its effect by a fair construction of the paragraph.
The fee thus created was held in common, without the right of partition or division, until "all" named devisees "marry or die." This and the effort to hold the property together for the purposes and parties indicated, is testator's intent. The provisions, "to insure a home and support for my said daughters and only son," and, "I desire all my household furniture and articles to stay in the house until a final settlement," unquestionably show that no partition was to be made until all marry or die. And the words, "jointly, share and share alike," so indicate or emphasize the intent that no partition is to be made until the coming into existence of the changed status indicated — marriage or death.
It follows that these fees in the daughters and son were subject to cross-conditional limitations in fee — during the period terminating on the marriage or death of all — to the surviving brother and sisters. Section second, paragraph 2. Thorington v. Thorington, 111 Ala. 237, 20 So. 407, 36 L.R.A. 385; Id., 82 Ala. 489, 1 So. 716; L.R.A. 1917D, 607 N; 40 Cyc. 1682.
A summary of the facts shows that four of such children without marriage died; Sadie Mae Miller and Lizzie Louise Watkins are married; and that Birdie survived them all and died. Her heir, legatee, or devisee would take from her, and the executor of the estate of said Birdie Crute is entitled to the same for the benefit of the devisee, John D. Stannard, who was the nephew of Birdie. That nephew had taken nothing by descent from his mother. Her death, prior to the period of division, had subjected her share in fee to the conditional limitation in favor of her brother and sisters. When Birdie died, all had married or died. At that time, the conditional limitations were no longer effective to interfere with or prevent the devise or descent of Birdie's shares. At the time of her death, she had a clear fee or unconditional estate to devise, and her nephew takes under her will, if such there was. The extent of the estate so taken by this nephew was Birdie's original fee and her accrued interest, estates, or shares from her deceased brother and sisters or their survivors. Subject to liens, she may have imposed thereon by contract or by way of estoppel. Lombard v. Witbeck, 173 Ill. 396, 51 N.E. 61.
From this, it should follow that Lizzie and Mae, having married, have no interest in the properties specifically indicated, including the "drug store."
The foregoing is the opinion of the writer only.