Stein v. Gordon

COLEMAN, J. The case comes before us on demurrer, and the decision of the legal questions, involves the construction of the will of Albert Stein. In construing a will, the main purpose is to ascertain and give effect to the intention of the testator. When its provisions are indefinite, reference must be had to settled principles, so far as applicable to the question under consideration. A gift of the rents and profits for a limited time does not carry the fee, but, in the absence of any expression of a different intention, a gift of the rents and profits is tantamount to a devise of the land itself. — Diamont v. Love, 31 N. J. L. 220; Traphagen v. Levy, 18 Atl. Rep. 222; Reed v. Reed, 9 Mass. 372. An implication is admissible in the absence of, but not to control, a bequest or a devise.— Whorton v. Moragne, 62 Ala. 212. An intention of the testator, the effect of which will be to lessen or delay the usufruct of a bequest or devise by the beneficiary, ought not to be implied, unless the terms of the gift or devise plainly and clearly raise such implication. Wherever the authority to control and manage an estate is separated from the beneficial interest and enjoyment of the same, the polic,y of the law is to consummate a merger or union of the entire estate, as soon as practicable, and consistent with [536] the intention of the grantor. Due ex dem. Gossar v. Ladd, 77 Ala. 231. It is manifest from the 7th item of the will, that the testator intended, and did dispose of his entire estate, and it is equally manifest from other provisions of the will that he intended the objects of his bequest and devises should have possession, enjoy, control and manage all the estate given and devised to them respectively, except the Mobile City Waterworks. By the 2nd item, the testator “wills that all my right and title and interest in the Mobile City Water Works be held, managed and controlled solely by my executor, hereinafter named, and that the net annual income derived therefrom be divided equally among my five surviving children.” The executor was one of the five children. These five children have exactly the same interest, in the Water Works, and this interest is not contingent or conditional. The net income is an absolute gift or devise, so far as disclosed by this item of the will. There is no limit of duration of time fixed, within which the executor is to cease “to control and manage the Water Works.” The question then arises, how long is the executor to continue to manage and control the Water Works, and what purpose did the teslator have in view, in making a different provision in regard to the Water Works than that as to his other property ? We think the solution is found in the first item of his will. Testator had a grand-daughter “Carrie,” of tender years, by his deceased son Albert; and in the first item of his will, he devises and bequeaths unto her three hundred dollars per annum, to be paid to her annually until she attains the age of twenty-one years, “by my executor, the same to be a charge upon my estate or the income thereof.” Although this annuity is made a charge upon, the estate or income, we have seen the testator intended that the possession, enjoyment and control of all the property, except the Waterworks, should pass to the legatees and devisees. The annuity was to-be paid by the executor. There is no provision in the will by which the executor can pay the annuity — except from the-Water Works. Eor this purpose we think it is clear, the management. and control of the Mobile Water Works was vested in him. “Carrie” having attained the age of twenty-one years,, the object and purpose for which “the right to hold, manage and control” the Mobile Water Works has been fully accomplished, and Tinder the policy of the law, the estate, and “the right to manage and control” the same merges and becomes absolute in the five children, to whom “the income therefrom,”' was given by the will. [537] No question other than the construction of the will, has been presented or argued in brief of counsel, and we decide this question alone. Affirmed.