Elmore v. Mustin

GOLDTHWAITE, C. J. The first question is, whether the instrument made by Paul Walters, in 1845, is a deed or a will. If it was intended to pass a present interest, and has the other requisites essential to its operation as a deed, it will in law be so regarded; while, on the contrary, if the interest was entirely posthumous, then it" is a will, if properly executed as such. — Adams v. Broughton, 13 Ala. 731; Golding v. Golding, 24 ib. 122; Jarman on Wills, 11. The present instrument is certainly very inartificially drawn; but we think it clear that it was intended by the maker to pass a present interest.’ This is shown by the language employed, which, in the concluding, clause, is susceptible of no other construction. It is, indeed, as strong in this aspect .as words can make it. The last clause reads as follows, “ The condition of the above named gift is - to take effect at my death; until then, the property is to remain as my own.” By. this, when taken in’connection with the words which precede it, we understand that the operation of the gift, so far as possession was concerned, was to be postponed until the death of the donor, up to which time the property was to remain, not Ms own, but “ as” his own. The word “ as”, in our opinion, is the qualifying word of the clause, and shows that the donor did not intend to hold the property absolutely up to'the period to which he had postponed the enjoyment of the interest he had given. We cannot, on any other construction than-the one we have given to this .clause, reconcile it with the preceding part of the instrument, the words of which so evidently evince the intention to pass a present interest. The language of the condition or proviso is, at least, doubtful; and it wotild not be* in accordance with sound rules of construction, to make the certain and definite yield to the [314] uncertain and doubtful. The interpretation we have given to the clause in question harmonizes with the other parts of. the instrument, and makes it consistent as a whole. We are aware that what was said by Collier, C. J., in Dunn v. Bank of Mobile, 2 Ala. 152, and the decision in Shepherd v. Nabors, 6 Ala. 631, are opposed to the conclusion to which we have arrived; but the result in the first case would have been the same, had the instrument been declared a will; and the authority of both is shaken, if not overruled, by the subsequent cases of Adams v. Broughton, supra, and Golding v. Golding, supra, both of which sustain the,views we have expressed. , As to the interest conveyed : The donor virtually reserves to himself a life interest in the property; and, with this reservation, he gives it to Sarah M. Elmore, “ and to her children, the natural heirs of her body, at her death.” The interest of Mrs. Elmore is not, as has been urged, converted into an absolute gift, on the principle applicable to estates tail; for the word “children” is here explanatory, and restrictive of the words immediately following it, and presents a stronger case than Dunn v. Davis, 12 Ala. 135, where the gift was to tht? “ heirs or children.” Sarah M.'Elmore therefore taking but a life interest, the question then is, whether the remainder was to her children living at the time of the gift, or to her children living at her death. The gift, it is to be observed, is to Mrs. Sarah M. Elmore for life, and “ to her children, the natural heirs of her body”; and we think that, by the terms “ natural heirs of her body”, taken in connection with the word “ children”, the donor intended to limit the gift to the children who were heirs; and, upon the principle, nemo est hares viventis, the limitation could only extend to the children living at her death, thus giving to them a quasi contingent remainder, which we held in Williamson v. Mason, 23 Ala. 487, could be created in personal property by deed. It is tsaid, however, that inasmuch as the record shows there was no evidence that the plaintiffs below were the children of Sarah M. Elmore, they were not entitled to recover, and for that reason the case will not be reversed; we are inclined, however, to think that the written agreement [315] entered into by the counsel, and which appears of record, rested the case entirely upon the construction of the deed; but, had there been no such agreement, We are of opinion, that the ends of justice require a reversal. It is true that the court will not reverse, although an error has been committed, if it can clearly be seen that such error occasions no injury. Neither, as a general rule, will a judgment be reversed, when it is apparent, upon the whole record, that the plaintiff cannot recover. But neither of these rules can properly be extended to the case before us. Had the charge been rested solely on the deficiency of proof as to the character of the plaintiffs, a motion might have been made to offer the necessary evidence on this point, or for a new trial with a view to supply it thereafter. But with the decision of the court, as to the effect of the deed, either motion would have been entirely superfluous. The charge asserted a proposition, which was conclusive of the ease in every aspect, and thus virtually forestalled the action of the plaintiffs as to mere deficiencies or omissions of proof, which the party might have remedied, had merely the general charge been given, that upon the evidence no recovery could be had. In this respect, the error, if we were to refuse to reverse, might result in irreparable injury. Judgment reversed,, and cause remanded.