Opinion
8 Div. 987.
March 29, 1928. Rehearing Denied May 31, 1928.
Appeal from Circuit Court, Morgan County; James E. Horton, Judge.
E. W. Godbey, of Decatur, for appellant.
The nature of estates of beneficiaries is determined at testator's death. Tomlin v. Laws, 301 Ill. 616, 134 N.E. 24, 26 A.L.R. 606; Mitchell v. Pittsburg, 165 Pa. 645, 31 A. 67; Walsh v. McCutcheon, 71 Conn. 283, 41 A. 813. There are no operative words in the so-called limitation and codicil. Long v. Holden, 216 Ala. 81, 112 So. 447. Where a fee simple is expressed rather than implied, a repugnant limitation over is void. Ward v. Torian, 216 Ala. 288, 112 So. 816; Graves v. Wheeler, 180 Ala. 412, 61 So. 341; Head v. Hunnicutt, 172 Ala. 48, 55 So. 161; Self v. Self, 212 Ala. 512, 103 So. 591.
S. A. Lynne, of Decatur, for appellees.
Brief did not reach the reporter.
It is a well-established legal principle in this state that words of survivorship as used in a will, unless there is a manifest intent to the contrary, always relate to the death of the testator. Spira v. Frenkel, 210 Ala. 27, 97 So. 104, and cases cited. The present will, however, clearly shows a manifest intent to base the survivorship of the daughters upon the death of the wife and not the testator. It says:
"In the event of the death of either of my said daughters before my wife dies."
It is also well established that a clear and absolute gift is not to be cut down by anything which does not with reasonable certainty indicate an intention to cut it down. Pitts v. Campbell, 173 Ala. 604, 55 So. 500. While the present will recites that after the death of the testator's wife the estate is to be equally divided between his three daughters, "share and share alike in fee simple," it is followed by the following provision:
"In the event of the death of either of said daughters before my wife dies, then if such daughter leaves no lineal descendants, said property is to go and become the property in fee simple of the surviving daughter or daughters but if one or more of said daughters leave children, such children will take the place of the parents in this devise and shall have the part such parent had taken had she or they lived."
It is therefore clearly manifest that, while the devise to the daughters says in "fee simple" after the death of the wife, the last-quoted provision limits it to the survivorship of the testator's wife.
It will be noted that the fee simple is not to the daughters in præsenti, but only after the death of the wife, and the later provision was evidently intended to provide against a contingency in the event the wife survived the daughters or some of them. It is a well-established rule of construing wills that the intent of the testator is the chief thing to ascertain and which 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. On the other hand, should such a construction be impossible and there is a conflict, the first clause or provision should be disregarded and the later one adopted. Underhill on Wills, § 357; Thrasher v. Ingram, 32 Ala. 645; Wynne v. Walthall, 37 Ala. 43.
We therefore hold that the wife and daughters took, under the will, a joint interest in the property during the life of the wife and upon the death of the wife it is to go in fee simple to the surviving daughters or to the descendants of such daughter or daughters, if any there be, in case any of said daughters do not survive the testator's wife.
The will, as distinguished from a deed, was ambulatory, and the testator had the right to substitute the new wife in place of the old one under the terms of the original, or to make a new will if he saw fit. We fail to see how the case of Long v. Holden, 216 Ala. 81, 112 So. 444, has any bearing upon the codicil or on the other question either as that case was dealing with a deed. It is true, the opinion states, referring to another case, "it was there held that an habendum clause merely, with no granting clause or other equivalent, was ineffectual." Whether this rule applies to wills or not, it is sufficient to say that the present one contains apt words of devise and the substitution of the second wife in place of the deceased one in no wise affected the nature of the devise except as to one of the devisees, that is, the second wife.
The trial court did not err in sustaining the demurrer to the bill which was to the effect that Arthur Hugh Helms had a contingent interest in the property in case his mother did not survive the testator's wife, and the decree of the circuit court is affirmed.
Affirmed.
SAYRE, GARDNER, and BOULDIN, JJ., concur.