Park v. Powledge

GARDNER, J. The result of this appeal turns upon the construction of the will of D. J. Taylor, the important provisions of which are set out in the above statement of the case. In the will' as originally executed the testator devised and bequeathed to his-wife, Mary L. Taylor, his entire estate, “real, personal and. mixed, * * * and all monies, choses in action, rights, credits- and all other interests whatsoever, * * * absolutely and in fee simple.” Mary L. Taylor was appointed executrix without bond and! exempted from making inventories of the property, and under the provisions of item 7 she was given full power of disposition of the property.. By a codicil executed in 1910 the gift to the wife of the fee-simple title to the real estate was expressly cut down to a life estate, and the testator there disposed of several parcels of said real estate to his nephews and niece, effective upon the death of his widow. No reference was made in the codicil to the personal property nor as to the widow’s fee-simple title thereto; but by the fourth item of the codicil it is provided that at the death of the widow “all money on hand shall be equally divided” between complainants and respondent, and it is upon the language of this item that complainants must rest their case. They insist that in it the testator cut down the widow’s interest in the personal property, or at least in the money, from a fee-simple title to that for life only, or in trust for complainants. It is a well-settled rule that: “A clear gift is not to be cut down by anything which does not, with reasonable certainty, indicate an intention to cut it down.—O’Connell v. O’Connell, 196 Ala. 224, 72 South. 81. The cardinal rule of construction of- course is that the intention of the testator, as gathered from the language used in the will and from the four corners of the instrument, is to be given effect if not inconsistent with the law.—Myrick v. Williamson, 190 Ala. 485, 67 South. 273. If valid, the limitation over to these complainants of all money on hand at the death of the widow is an — 176 — •executory devise. The principle applicable to cases of this character is treated in the case of McRee v. Means, 34 Ala. 349, from which we take the following quotation: “It is a principle of law, too well settled to be controverted, that an absolute power of disposition or alienation in the first taker defeats a limitation over by way of executory devise. * * * ■What is meant by the absolute power of disposition which defeats an executory devise can best be ascertained by referring to the reason upon which the principle is founded. One of the distinguishing properties of an executory devise is its indestructibility and its total exemption from the power and control of the first taker. * * * As a consequence of this characteristic of executory devises, when the testator’s intention to place the limitation over under the power of disposition of the first taker appears, the executory devise is void. The absolute power of disposition, which defeats the limitation over, is, therefore a power to destroy it by alienation, and not merely a power to alien the estate vested in the first taker. This will -be apparent by a recurrence to the authorities, which show that an absolute power of disposition makes the limitation over repugnant, only because an executory devise is indestructible; and that the doctrine of repugnancy never has been applied, except in cases where the ■ power of disposition infringed the limitation over. Kent’s state- ' ment of .the doctrine is as follows: ‘The executory interest is • wholly exempted from the power of the first devisee or taker. •If, therefore, there be an absolute power of disposition given ' by the will to the first taker, as if an estate be devised to A. in fee, and if he dies possessed of the property without lawful issue, the remainder over, or remainder over of the property which he, dying without heirs, should leave, or without selling or devising the same; in all such cases, the remainder over is void as a remainder, because of the preceding fee; and it is void by way ■ of executory devise, because the limitation is inconsistent with -the absolute estate or power of disposition expressly given, or necessarily implied by the will. A valid executory devise cannot exist under an absolute power of disposition in the first taker.’ ” The opinion in the McRee-Means Case cites by way of illustration many English and American cases where the limitation •over has been held void for repugnacy, among them being Jackson. v. Bull, 10 Johns (N. Y.) 19, where the limitation of such •éstate as the first taker might leave, and Melson v. Doe, 4 Leigh — 177 — (Va.) 408, where the limitation was of so much of the estate as might remain undisposed of by the first taker. The case of Howard v. Carusi, 109 U. S. 725, at 730, 3 Sup. Ct. 575, at 578 [27 L. Ed. 1089], is of interest in this connection and recognized the general rule above stated, as is shown by the following paragraph: “The rule is well established that, although generally an estate may be devised to one in fee simple or fee tail, with a limitation over by way of executory devise, yet when the will shows a clear purpose of the testator to give an absolute power of disposition to the first taker, the limitation over is void.” Many other authorities are reviewed in that case. Another case of interest is that of Bernstein v. Bramble, 81 Ark. 480, 99 S. W. 682, 8 L. R. A. (N. S.) 1028, 11 Ann. Cas. 343, which contains'many quotations from other jurisdictions and from text-books on the subject, from which we take the following excerpts: “A testator by the second paragraph of his will gave his whole estate to his wife ‘absolutely and forever.’ In the following paragraph he provided that it was his will that if any of the property remained undisposed of after her death, it should go to his blood relations. Held, that the wife took a fee simple, and that hence the attempted disposition over was void, and the blood relations took nothing thereby. * * * ‘It is the rule that where property is given in clear language sufficient to convey an absolute fee, the interest thus given shall not be taken away, cut down, or diminished by any subsequent vague and general expressions. This rule is applied where a fee is given either expressly by words of limitation, as to a person and his heirs, or by implication by a devise in general language through the operation of the modern statutes. If it is clearly the intention of the testator that the devisee shall own the fee simple, his subsequent language, directing that what remains of the property at the death of that devisee shall devolve upon a particular person or class of persons, will not cut down the fee to a life estate. The fee, being vested by express and appropriate words, will not be diminished by subsequent words of a vague and general character which are absolutely repugnant to the estate granted.’ [2 Underhill, Law of Wills, § 689.] ■* * * It not infrequently happens that a testator disposes of property in fee, and then attempts to provide for the disposi- ■ tion of the property after the death of the devisee in fee simple. — 178 — A provision of this sort is to be carefully distinguished from the cases where a fee simple is cut down to a life estate by a devisee over after the death of the first taker. The distinction between the two classes of’ cases, though not strongly marked, is well recognized by the courts. If the devise over upon the death of A. is intended to pass the entire property, it is evident that the testator contemplated that A. should take only a life estate, without any power of disposing of his property for a longer term than his own life. But where the devise over upon the death of A. shows that A. was vested with a fee simple estate, and that testator wishes him to have such an estate, but to direct the course of its descent upon his death, the limitation over after the fee is repugnant to the nature of the estate and void.” The cases of Bradley v. Carnes, 94 Tenn. 27, 27 S. W. 1007, 45 Am. St. Rep. 696; Stowell v. Hastings, 59 Vt. 494, 8 Atl. 738, 59 Am. Rep. 748, and McKenzie’s Appeal, 41 Conn. 607, 19 Am. Rep. 525, are very much in point. In the latter is cited Ramsdell v. Ramsdell, 21 Me. 288, where it was held that the intention to authorize a legatee to dispose of property absolutely and without limitation was clearly implied by the words, “if any remains,” in the devise over. Also Harris v. Knapp, 21 Pick. (Mass.) 416, where it was said that by the words, “whatever shall remain,” the implication is inevitable that the legatee had power to make such disposition, and that this was inconsistent with the supposition that the whole was to remain undiminished in the hands of the executor or other trustee for the purpose of satisfying the gift over. In the Stowell-Hastings Case the court said: “Where the jus disponendi is conditional, as in those cases where the property is given for support only, with power over the principal for that purpose, or the estate given the first taker is one for life only, a different rule may prevail and the gift in remainder be valid. * * * In such cases, no absolute estate is given the first • taker.” Our own case of Smith v. Cain, 187 Ala. 174, 65 South. 367, seems to belong to this class, as the will there construed was held to indicate that the property was given to the widow “for her support and comfort * * * during her natural life.” The rule is therefore well established that a valid executory devise cannot exist under an absolute power of disposition in the first taker, as a limitation over would be void for repugnancy. The rule above quoted from Underhill on the Law of Wills, that — 179 — where the property is given in clear language, so as to convey a fee-simple title, the interest thus given shall not be taken away or cut down or diminished by any subsequent vague and general expression — which rule was given application in our recent case of O’Connell v. O’Connell, supra — should be kept in view in the construction of wills of this character. It but remains to apply these rules to the will here under consideration. The Taylor will as originally drawn gave the entire estate to the widow “absolutely and in fee simple.” She therefore had the absolute power of' disposition over the personal property and the real estate. In the codicil to the will the original devise was not revoked, but expressly confirmed except a.s changed therein. So far as the title vested in the widow is concerned, the only change made was the cutting down of her fee-simple estate in the land to a life estate. Her absolute ownership and full control over the personal property was unchanged. The testator anticipating that at the death of the widow there would remain money on hand, attempted to make disposition thereof. The expression “money on hand” could certainly be held to have no stranger meaning than the phrase, “possessed of the property,” found in the above quotation from Mr. Kent, or “such estate as the first taker might leave,” quoted in the McRee-Means Case, supra. To hold to the view insisted on by complainants it must be affirmed by this court that the testator meant by the codicil to revoke so much of the will as gave to the widow the absolute fee-simple title to the money and other personal property, and intended to substitute therefor that she could use it only for her life — for her support and comfort — and yet there is no language indicating such intention, although he expressly cuts down her fee-simple title in the real estate to that of life interest only. The expression, “all the money on hand,” must be held to mean the money which she “might leave” or “Be possessed of,” or which she had not disposed of, but it cannot in our opinion be construed so as to cut down her fee-simple title to merely a life estate. Had the testator foreseen such a situation as presented here he might have guarded against it and limited the widow’s power of disposition over the estate; but to thus enter into the field of conjecture is not permissible where the language of the will is clear and intelligible. This is rather forcibly illustrated in the following quotation from Sherrod v. Sherrod, 38 Ala. 537, — 180 — found in Hollingsworth v. Hollingsworth, 65 Ala. 321: “The court cannot resort to conjecture, when the terms of the will are of intelligible import. To do so, would be to make a will, conforming to what is supposed the testator intended — not to search for the intention in the construction of what is said. It is not the province of a court to incorporate into a will provisions which it may be supposed the testator would have adopted, if they had occurred to him. Nor is it the province- of the court to provide for a contingency, neglected in the will, because there is room for conjecture that the testator would have done so, had he anticipated it.” Courts are not permitted, under a pretense of interpretation, to incorporate provisions in the will unless the will itself clearly shows such intention on the part of the testator. While we recognize the force of appellants’ argument from a moral standpoint, we cannot give the force and effect to item 4 of the codicil contended for without entering the field of conjecture and inserting-in the will provisions not expressed therein and not shown by clear and necessary implication to have been the intention of the testator. We therefore conclude that item 4 of the codicil is void for repugnancy. It results that the decree sustaining the demurrer will be here affirmed. Affirmed. Anderson, C. J., and McClellan and Sayre, JJ., concur.