Russell v. Andrews

HARALSON, J. The object of the present suit is to construe section three of the will of William A. Andrews, in connection with its other provisions. That section reads as follows : ‘ ‘As soon after my death as convenient, I desire my daughter, Dora Russell, and her husband [who was L. A. Russell, the appellant] to move to and [227] occupy my present residence, and I give, devise and bequeath to them, the use of eighty acres of my home plantation, and on the south side of said plantation, adjoining the Knowles place, until my executrix and executor shall have accumulated from the net income, rents and profits of the real and personal property, the sum of twelve hundred dollars, over and above the amount necessary to carry out the provisions of this will. And when said twelve hundred dollars is so accumulated, my executrix and executor are directed to invest the same in real estate wherever they and my said daughter, Dora, may desire to purchase and locate the same. The title to said real estate so to be taken, that my said daughter, Dora, shall have only a life estate therein, and at her death to revert to her children. And it is directed, that as soon as said twelve hundred dollars is accumulated, and a reasonable time to invest the same as hei’ein stated has elapsed, then the right of my said daughter, Dora, to occupy my ,said residence, and to have the use of said eighty acres of land, together with any right or claim of her husband thereto, shall cease and determine.” From the whole will it is manifest, that the testator, who was a married man, was the owner of very considerable property, real and personal; that he had a number of children, — how many not stated, — and that he desired his estate to be ultimately distributed, share and share alike, between his children. His wife was provided for on terms fully equal to his children, but she was to have only a life estate in the property set apart to her. As the children arrived at the age of twenty-one, or married, each was to receive twelve hundred dollars, which was to be considered an advancement, on which interest was to be charged, to the time of final settlement, to produce equality of shares in the end, as provided in paragraphs seven and eight of the will, which will be set out in the report of the case. As to his daughter, Dora Russell, in addition to the foregoing provision for her, contained in paragraph three of the will copied in full above, appear two other provisions; the first appearing at the conclusion of paragraph six, as follows : ‘ ‘And the said twelve hundred dollars to be invested by my executrix and ex [228] ecutor,'in real 'estate for my said daughter, Dora, as stated in paragraph third of this my will, is to be regarded and considered as an advance to her on her' share in my estate, under and subject to the provisions of this paragraph of my will.” The other provisions of said paragraph six referred to, were in reference to directions for the payment to each of his children, twelve hundred dollars as they respectively arrived at age or married, on which advancement they were tobe charged eight per cent interest up to the final settlement of the estate. The other, second direction as to said Dora, is contained in the eleventh paragraph as follows: “And it is further expressly provided, that if my said daughter, Dora Russell, should die and not leaving surviving her any child or children, then and in that event, the share of my estate herein provided for her, shall revert back and become a part of my -original estate, and shall be distributed among my heirs as required by paragraph seven of this my will.” It appeal’s that testator’s will was duly probated in 1881; that the executors named qualified and entered on the discharge of their duties, are still acting as such, and that said will has never been fully executed. It is not shown that the testator’s youngest child has arrived at the age of twenty-one years, nor that all of his children have married ; the alternative periods fixed by the will in its seventh section, for a sale and distribution of his estate. It is shown that said Dora and her husband, the appellant, after the death of testator, entered into the possession of the lands sued for, the same being the residence and the eighty acres of the home place, mentioned in paragraph three of the will; that in the year 1884, they moved away from said lands and rented them out to a tenant and received the rents therefor until the death of said Dora, which occurred in 1885 ; that said Dora left surviving her, her said husband and a son, James A. Russell; that appellant, for his said son, continued to rent out said premises and to receive the rents therefrom, till August 10th, 1895, when his said son, James, died; and that appellant continued to rent out [229] said lands until this suit was brought against his tenant, John Collier, for whom, on motion, he was let in to defend. It is not shown, that the executors ever invested twelve hundred dollars in another home for said Dora as they were authorized and directed to do in paragraph three of the will, on which happening, as therein provided, the right of testator’s said daughter, Dora, and her husband to occupy and use his said residence and eighty acres of land, should cease and determine. The place provided to be purchased in lieu of the home place was for said Dora for life, and at her death to go to her children-. Her husband was to have no interest in it. The foregoing provision may, therefore, be allowed to pass from view, as affecting the previous provision of section three, in favor of Dora and her husband to the residence and eighty acres of land, for it is clear, that until the executors purchased another place for them as directed,' which they did not do, and which by her death was rendered impracticable, they were to be allowed tb occupy and use said residence and eighty acres of land. The other said provision as' to said Dora, found at the conclusion of the eleventh paragraph of the will, copied above, has no reference to the occupancy and use by her and her husband of the residence and eighty acres of land, but has reference entirely to her general share of the estate, directing that whatever she received of the estate, in the event she should die without leaving a child, should revert to his estate and be distributed among his children as directed in paragraph seven of the will. It does not appear, that his said daughter at any time during her life, received any part of the estate of her father, the testator. The only provision for her benefit arising under said will, of which she became the recipient, so far as shown, was the occupancy by her and her husband of the residence and the land attached. This brings us to consider, what right the appellant acquired under said paragraph three of the will. That paragraph gave said Dora and her husband, — to quote the language of the will, — the right “to move to and occupy my present residence,” etc. This they did. It further provides as to said premises; “I give, devise [230] and bequeath to them (my said daughter, Dora Russell, and her husband) the use of eighty acres of my home plantation, [the land sued for], * * * until my executrix and executor shall have accumulated from the net-rents and profits of the real and personal property, twelve hundred dollars,” to invest in another place for them, as in said section provided, at which time, “the right of my daughter, Dora, to occupy my said residence, and to have the use of said eighty acres of land, together with any right or claim of her husband thereto, shall cease and determine.” The word “use,” as employed by the testator in that provision of his will, means the right to occupy, enjoy, and to receive the profit or benefit of lands or tenements.—Thompson v. Thompson, 107 Ala. 163. The residence and land attached were given to the husband and wife. They took under the will, not of entirety, as at common law, but, under the statute at. that time, they acquired the estate by moieties. On the death of Mrs. Russell intestate, her interest in the home tract being her separate estate, her husband, under the statute, was entitled to the"use of her part of the realty during his life, but neither acquired a right thereto beyond the limit fixed by the will for the sale of all property, and the distribution and settlement of the estate as provided by section seven of the will. Until that time, unless he shall sooner die, the defendant is entitled to the possession and use of said property in his own right, and by inheritance from his wife.—Code, 1867, § 2379; Walthall v. Goree, 36 Ala. 728; Whitlow v. Echols, 78 Ala. 209; Houston v. Williams, 81 Ala. 482. Judgment should have been rendered for the defendant, and not for the plaintiffs. Reversed and remanded.