Banks v. Jones

B. F. SAFFOLD, J. — The appellants, claiming a legacy under the will of Jacob Swoope, filed the bill to obtain a construction of the clause of the will making the bequest, and also to procure distribution of the fund amongst those entitled to receive it. The clause is as follows: “ 5th. That the said executors shall lay aside the sum of four hundred dollars annually, for ten years, to be managed by the said executors, for the sole and special use and benefit of Sarah A. Sherrod and her children, and, after her death, for the special use and benefit of her children, but not subject in any manner whatever to the control of her husband.” The will was nuncupative, and the testator died in March, 1841. At that time, Sarah A. Sherrod had two children, Benjamin and Francis Sherrod; and after-wards, her daughter, Alice C. Sherrod, was born. Mrs. Sherrod died in September, 1861, leaving her children, Francis and Alice, and two children of her son Benjamin, who had died. Alice alone still survives. The representative of Francis is party complainant with her, and the trustee of the fund, and the proper representatives and heirs of Benjamin and his children, are the defendants. The law is clear, that the bequest in the will of Jacob Swoope, quoted above, vested presently, on the death of the testator, in Sarah A. Sherrod and her two children then living, to wit, Benjamin and Francis. 2 Jarman on Wills, m. p. 75; Nimmo v. Stewart, 21 Ala. 682; Smith v. Ashurst, 34 Ala. 208. It is equally plain, that on the death of Mrs. Sherrod, some estate was bequeathed to her children existing at that period, though born after the testator’s decease. A particular estate was carved out, with a gift over to the children of the person taking that interest. Such gift will embrace not only the objects living at the death of the testator, but all who may subsequently come into existence before the period of distribution. In cases falling within this rule, the children living at the death of the testator take a vested interest in their shares (though future in enjoyment), subject to divestiture, pro tanto, as the number of objects is augmented during the life of the tenant for life; so that their shares, on their death before the termination of the life estate, if transmissible, would go to their respective representatives. 2 Jarman on Wills, pp. 74, 75, 76. Therefore, [485] whatever interest Benjamin and Francis acquired by the death of their mother was vested in them before her death, but opened to admit Alice when she was born. What was that interest? The will says, for the sole and special use of the mother and her children, and after her death, for the special use and benefit of her children. A particular estate was carved out of the entire legacy, to continue during the life of the mother, for the benefit of herself and her children, with remainder to her children. The will does not say, that after her death the children are to have her share, nor that Benjamin and Francis are to have any greater or different interest than she is to have during her life. All that is given to her and her existent children is given over to her children after her death. The appellees contend, that Mrs. Sherrod and her children, Benjamin and Francis, had the right to have the corpus of the fund expended for their benefit during the life of Mrs. Sherrod. They invoke the principle, that an absolute power of disposition or alienation in the first taker defeats a limitation over by way of executory devise, and cite McRee’s Adm’rs v. Means, 84 Ala. 349. The controlling rule in the exposition of wills is, that the intention of the testator, expressed in his will, shall prevail, provided it be consistent with the rules of law. If two parts of a will are totally irreconcilable, the subsequent words must be taken as an indication of a subsequent intention. But they should, if possible, be reconciled, and the intention be collected from the whole will. If two intents are inconsistent with each other, that which is primary will control that which is secondary. Governed by the above rules, the construction of the appellees will not be made, unless it be indispensable. If the testator had added to the words “ for the sole and special use and benefit of Sarah A. Sherrod and her children,” the words “ during her life,” they would, beyond question, have limited the use and benefit to the life of the mother. The equivalent words, “ and after her death,” must be allowed the same operation. The rule, that a remainder may be limited after a life estate in personal property, is as well settled as any other principle of our law. The bequest to the children “ after her death ” cannot be disregarded, but must restrain the former words, and may be reconciled with them. The only evidence of two intents is the fact that children were born before and after the death of the testator. We may look to the situation of the parties, the motives which might naturally operate on the testator, and any other circumstances calculated to give evidence of intention, in construing ambiguous expressions. When these aids concur with the literal import of the words, there is every reason to support the intention they indicate. [486] Mrs. Sherrod was the niece of the testator’s wife, and it is natural to suppose that his affection for her children was mainly due to his regard.for her. No reason is apparent why he should have preferred some’ of her children to others. Those living were very young. The bequest was not large, and would be more useful to tbe family collectively, than separately. He was not willing for her husband to acquire any interest in it, but after her death he wished her children to have whatever was left. The uncertainty of the sum which might remain formed no objection. The legacy, though small, was not consumed by the use. Upwell v. Halsey, 1 P. W. 651. The case of Smith v. Bell, 6 Peters (U. S. R.), 68, is very similar to this one, and contains a review of many leading authorities on the points involved. Our decision is, that all of the children of Mrs. Sherrod, including Alice, are equal participants in the property, and that Benjamin’s share, having been vested in him, goes to his personal representatives; and that the trustee should be credited with all sums paid for the use and benefit of the beneficiaries, and be charged with the balance not so accounted for. The decree is reversed, and the cause remanded.