English v. McCreary

ANDERSON, J. — The will in question provides that the respective shares “that I have given to my several daughters are given to them and their bodily heirs or the lawful heirs of their bodies and to their own individual control and not subject to debts contracted by their said husbands or any other person whatsoever.” If this clause stood alone, it would create a fee-tail estate, which is by the terms of section 3397 of the Code of 1907 converted into a fee-simple estate, in favor of the daughters.—Mason v. Pate’s Ex’r, 34 Ala. 379; Smith v. Greer, 88 Ala. 414, 6 South 911; Slayton v. Blount, 93 Ala. 576, 9 South. 241. See, also, the case of Wilson v. Alston, 122 Ala. 630, 25 South. 225, wherein the line of demarcation is drawn between these cases and the line of decisions relied upon by counsel for appellants. The will, however, further provides: “Should any of my youngest children die before having or leaving any heir, then their shares to be divided between the remainder or surviving part of said four younger children.” Conceding, without deciding, that this was intended as a [489] limitation upon tlie death of the daughter, and not of the testator, and that it was intended as a restriction upon the estate of the daughters, it did no more than postpone the vesting of the fee until the having of a child, as there is no attempt to entail the property, except in case the four youngest children die before having or leaving a child. It is .therefore apparent that the testator did not wish to limit the fee, except in case the daughter died without having or leaving a child or children, and the limitation, if good at all, could do no more than postpone the vesting of the fee until the “having an heir” by the daughter. Martha had children, who are the plaintiffs in this case, and, as the remainder was dependent upon a condition never arising, the fee vested absolutely in her upon the birth of a child. Whether the fee vested in her before executing the deed to McCreary, or not, as the record does not show whether a child had been born at that time, makes no difference, as the deed was a warranty, and the fee did become vested upon the birth of her first child. While the word “heir” is used in the attempted limitation, it is evident the testator meant “child,” as the having of an heir eliminated the limitaton, and the dying before “having an heir” evidently meant dying before giving birth to a child. The judgment of the circuit court is affirmed. Tyson, C. J., and Simpson, and Denson, JJ., concur.