Banks v. Sherrod

BRICKELL, C. J. By the common law infants were incapable of devising real estate. Females of the age of twelve years, and males of fourteen, could make a valid disposition of personal estate by will. 1 Jarman on Wills, 29. Testamentary capacity is fully defined by the statutes of this State. “ Every person of the age of twenty-one years, of sound mind, may devise by his last will his lands, tenements, or hereditaments, or any interest therein, descendible to his heirs.” R. C. § 1910. “ All persons over the age of eighteen years, of sound mind, and no others, may also by their last will, dispose of all their personal property.” R. C. § 1916. The statutes observe the distinction between a devise of real estate and a bequest of personalty, recognized at common law, effecting a change only as to the age at which capacity to make a disposition of personalty is imputed. The law, and courts of justice, pursuing its spirit and maxims, have always favored heirs. They are appointed by the law to succeed to the estate of which a valid disposition is not made by will. “ Plain words are required to disinherit them.” Though it may appear the testator did not intend that his heir or next of kin should take his estate, real or personal, and intended to exclude them from succession to it, yet, if he fails [271] to make a valid devise or gift to another, they will take under the statute of descents and distributions. Denson & Wife v. Autrey, 21 Ala. 205. Nor is it every testator who can disappoint his heir or next of kin. If the subject of the devise is real estate, he has not power to deprive the heir of the inheritance the law confers, unless he is of the age of twenty-one years and of sound mind. If the subject of the gift is personal property, the testator must be over the age of eighteen years and of sound mind, or the appointee of the law will take under the statute of distributions. The object of the bill is to charge the lands of the testator with the payment of pecuniary legacies given by his will. At the making of the will, and at the time of his death, the testator, though above the age of eighteen years, was under the age of twenty-one years. The capacity to devise lands, conferred by our statute, includes the creation of all charges on real estate by last will. The statute not only limits the power to devise real estate, to persons who are of sound mind and of full age, but goes further, and expressly declares that which would have heen matter of necessary intendment, that “ all property not disposed of by will must be administered and distributed, as in case of intestacy, by the executor or administrator with the will annexed.” R. Q. § 1917. A charge of legacies on lands must be a devise, a disposition of the lands, or the statute intervenes, and declares they must pass as in case of intestacy. If such is not the effect of the statutes, it is vain to fix the age of twenty-one years as an element of the capacity to devise lands. A testator having capacity to dispose of personalty only, could, by pecuniary legacies chargeable on his lands, as certainly and effectually disappoint and disinherit his heir as by an express devise to another. Thus indirection would evade and defeat the statute and its policy. The testamentary power of one who has not attained full age is confined to his personal property; when that fails, or is exhausted, his power is exhausted. If that is insufficient to meet the bequests and legacies he may make by will, they fail. The lands of the testator he had no power to touch. The law reserves to itself the manner of their disposition. No legacy or charge he may create by will can be visited on them. It is said that the decree of probate is conclusive of the testamentary capacity of the testator, and therefore conclusive of his power to charge his real estate with the payment of pecuniary legacies. To this proposition we cannot assent. The will nominates an executor, and disposes of personal property only. It does not devise, or purport to devise, real estate, or any interest therein. As a will of personalty, the probate is [272] conclusive of its factum and validity. Its validity as a will of personal property is the only inquiry on which the court of probate could have entered or passed in decreeing probate. The legal operation and effect of the will on real estate was not a question before the court of probate, or on which it had jurisdiction to pass. The decree of probate cannot of consequence be regarded as an adjudication of the question now presented. The will disposing of personal property only, its probate was unavoidable, the testator being of the age of eighteen years. It would probably have been better if the decree of probate bad been qualified and limited by an express statement of tbe age of the testator, and that probate was granted of it as a will of personal property only. Whatever may be tbe form of tbe probate, it settles no question as to the power of tbe testator over Ms real estate. That question arises only wben tbe operation of tbe will as affecting real estate is involved. Baker v. Chastang, 18 Ala. 417; Osgood v. Breed, 12 Mass. 525. Tbe testator not having capacity by reason of bis infancy to charge real estate witb tbe payment of legacies, we have not considered whether in any event lands descended could be charged witb tbe payment of tbe legacies to appellants. Tbe decree of tbe chancellor is affirmed.