Foster v. Holland

STONE, J. Two controlling clauses in the will of Mr. Wilson fixfits interpretation, and force us to the. conclusion that the legacies in this case are of the class called vested. First, the expression, “ Having advanced to my son Thomas, in his life-time, more than to my daughter Anne Eliza Foster, and wishing to make them all equal at my death.” Second, “ The proceeds of the crops raised on my farms, or a sufficient part thereof, I hereby appropriate to the maintenance and education of my said grandchildren, to-wit: J. E. Wilson Foster, Turner S. Foster, and Anne Eliza Wilson, to be divided equally between them, until the time herein specified for the division of my estate between them, as herein-before provided. * * * The money paid by my executors in the maintenance and education of my said grandchildren, prior to the distribution of my estate between them, shall be stated in their settlement by my executors, with the Probate Court, or court having jurisdiction, and allowed to my executors in their settlement with the court as executors, and said sums charged to each distributee on final division between them.” The three grandchildren named above, all of tender years, constituted the entire line of descendants from the said testator ; and, with the exception of a small but praise-worthy provision for his “ faithful old servant, Nelson,” seem to have been the entire objects of his solicitude and bounty. The will contains no residuary clause, and no bequest over It disposes of his entire estate, and shows a purpose to leave no intestacy as to any part of his property. The clauses above copied, we think, show a purpose that the legacies should vest at the death of the testator, and only the complete and separate enjoyment was postponed to an after-time. To hold otherwise, would force on us the necessity of declaring that, as to the principal, or corpus of the estate, real and personal, the devise and bequest were entirely contingent until the happening of the eyent when, the [480] division was to be liad, leaving the title of the property undefined and unascertained in the meantime. This would be to declare a practical intestacy as to the corpus, during all those years. The law favors the vesting of legacies, and will not adjudge them contingent, unless the provisions of the will show the testator intended to make them such; and the law will not adjudge a partial intestacy, on strained or doubtful interpretations.' — McLeod v. McDonnell, 6 Ala. 236; McLemore v. McLemore, 8 Ala. 687; Savage v. Benham, 17 Ala. 119; Banks v. Jones, 50 Ala. 480. See, also, the array of authorities collected and collated in the briefs of counsel. The case of Travis v. Morrison, 28 Ala. 494, if not materially shaded by the apparent hardship of the opposite construction, is distinguishable from the present one, at least in requiring advancements, made to them for maintenance and education, to be brought into account against them. We do not overrule Travis v. Morrison, but we think the principles of that decision should not be extended. What we have said above shows that the legacies under this will vested in interest on the death of the testator. The 3d item of the will is in the following language : “ It is my will that my said farms be kept up and cultivated by my negroes, until my grandchildren [naming them] shall marry, or come to the age of twenty-one years, when an equal division of all my estate shall then be made between them or the survivors.” The 4th item has this clause:- “Should my grand-daughter, -Anne Eliza Wilson, live to become entitled to the one-third part of my estate, as provided in the 3d item,” &c. This language shows, that the testator considered he had divided his estate into three parts. We do not think these clauses sufficient to overthroAv the presumption, shown above, that the testator intended to create vested legacies. Ample field, of operation is left to the clauses above, when Ave hold that they declare a condition, on Avhich the legacies are to fail; a defeasible bequest. Having ascertained that the legacies under Mr. Wilson’s will were and are vested, it follows, that the bill in the present case is fatally defective, in failing to aver presentation or filing of the claim within eighteen months under the statute. Fretwell v. McLemore, 52 Ala. 124. The chancellor did not err in sustaining the demurrer to the bill, and his decree is affirmed.