Thorington v. Hall

McCLELLAN, J. Under the will of Jack Thorington, ■Sr., his sons, Robert D., Jack and William S., each took [330] a vested remainder in the land involved in this case subject to divestiture as-to any one of them by his death before the falling in of preceding estate in Mrs. Thorington, and as to all of them, by the exercise in the prescribed manner of the power of appointment conferred upon her by said will, and subject also to open and let in Mrs. Thorington,in the event she should marry again; or, it may be, subject to divestiture as to one-fourth part of the estate by her marriage, whereon there was to be a division in equal parts to her and the three named sons severally of the testator. — Smaw v. Young, 109 Ala. 528; Thorington v. Thorington, ante p. 237. 2. Each of the said three sons of the testator having thus a vested estate in this land, it was entirely competent for them to stipulate as among themselves against the divestiture of that estate as to any one or more of them by their deaths, respectively. They did so contract and stipulate by the agreement of August, 1881, whereby it is provided, agreed and covenanted between them, that, as they express it, the said will of their father ‘ ‘may be talcen and construed so that if either the said Robert D., Jack or Wm. S. should die leaving a child or children, that then, in that event, such child or children shall take the same share and interest in our father’s estate as its o.r their deceased father wbuld have taken had he lived, the object and intent of this agreement being to cause said will to have the same legal operation and effect that it would have if the words ‘or the survivors’ and the words ‘or the survivors or survivor of them’ in the sixth item, and the words, ‘or the survivors or survivor of said children’ in the seventh item, were not contained in said will.” ' This agreement is expressly referred to, recognized, assented to and adopted in and by the • will of Mrs. Thorington; and its effect, for the purposes of the present case, was to eliminate from the will of Jack Thorington, Sr., all reference to the survivors or survivor of his said three sons, so that upon the death of Robert D. Thorington his remainder in fee in the land sued for vested at once in his heirs at law, the plaintiffs in this action. 3. We have left for determination only the question whether the remainder thus vested in the plaintiffs was divested by the exercise of the power of appointment -conferred upon Mrs. Thorington- by the will of her hus [331] band, Jack Thorington, Sr. With the limitation as to survivorship eliminated from said will, in the manner shown above and the assent to and adoption of that elimination by Mrs. Thorington in and by the instrument in which she attempted to exercise the power of appointment — her last will — the power of appointment conferred by the will of Mrs. Thorington is to be taken and read as follows : Item Sixth .--It is my will and desire that my wife shall have the power and authority, and she is hereby invested therewith, to dispose of- all the estate and property she may have, or die possessed of, or be entitled to, by her will, to our-beloved children, Robert D., Jack and William'S., and in such shares and proportions to them, and under such safeguards in trust, or otherwise, as under the circumstances then existing she may deem just and wise and best for them. And the question is whether under a power thus expressed and conferred, it was competent for Mrs. Thorington to appoint said estate to Jack and William S. who survived her, and to the surviving children of Robert D., the latter having died before the execution of Mrs. Thorington’s will; as she attempted to do by her last will in the following language : “Item second. — I give, devise and bequeath all property of every kind whatsoever of which I may die seized or possessed or to which I may then be entitled in any manner whatsoever, to my sons, Jack Thorington, Wm. S. Thorington and the children of my deceased son, Robert D. Thorington, viz., Joseph Winter Thorington, Bessie May, and Jack, in the following proportions, towit: “To my son Jack Thorington, one third part thereof; to my son William S. Thorington, one third part thereof, and to the said children of my said deceased son Robert D., one third part thereof, in trust, -as hereinafter provided.” Confessedly at common law an appointment under this power to grandchildren of the testator — the children of Robert D. Thorington — -would be void. But it is insisted that section 1862 of the Code operates in this caseto authorize the appointment made by Mrs. Thorington to and among Jack,.William S. and the children of Robert D., deceased. That section provides : “When a disposition under an appointment or power is directed to be made to the children of any person, without restricting it to any particular children, it may be exercised in favor [332] of the grandchildren or other descendants of such person.” This section has no application in the present case. The exercise of the power is here restricted to particular children of the testator by name, Robert D., Jack and William S. Thorington. Whether, if it were made to appear that these three named children were ajl the children of the testator, the statute would apply'to the case, we need not decide, since it does' not appear upon the abstract-that such was the fact. It would seem, however, tobe an essential predicate for the operation of the statute that the children should be for appointment to and among children as such and as a class, and that a direction for appointment even to all the children of the testator by name would be such restriction to particular children as would take it out of the influence of the enactment. The case of Collins v. Toorner, et al., 69 Ala. 14, relied on by counsel for appellee, is not only not inconsistent with our conclusion on this matter, but, to the contrary supports it. It follows from the invalidity of the attempted exercise by Mrs. Thorington of the power of appointment conferred by the will of Jack Thorington, Sr., that the plaintiffs, at her death, took an undivided one-tliird interest in right of immediate possession and enjoyment in the land sued for and were entitled to recover such interest in this action. The court, therefore, erred in giving the affirmative charge for the defendant. Reversed and remanded.