Opinion
5 Div. 919.
June 25, 1925.
Appeal from Circuit Court, Lee County; N. D. Denson, Judge.
Smith Watkins, of Opelika, for appellant.
The appellant is given the right and authority to sell the home. Butts v. Jammes, 68 Fla. 231, 66 So. 1004; Archer v. Palmer, 112 Ark. 527, 167 S.W. 99, Ann. Cas. 1916B, 573; Liggat v. Hart, 23 Mo. 127. The complainant and respondent took a vested remainder in the property mentioned in item 2. Acree v. Dabney, 133 Ala. 437, 32 So. 127.
Denson Denson, of Opelika, for appellee.
Brief of counsel did not reach the Reporter.
General George P. Harrison, of Opelika, died July 17, 1922. He left surviving Sara N. Harrison, his widow, Mamie A. Harrison, a daughter by a former marriage, and George P. Harrison, Jr., a minor son. Mamie A. Harrison died intestate January 6, 1924, leaving George P. Harrison, Jr., her sole heir.
On November 17, 1920, General Harrison executed his will, which, after his death, was admitted to probate, and Sara N. Harrison was appointed executrix.
The present bill is filed by the executrix against George P. Harrison, Jr., individually and as administrator of the estate of Mamie A. Harrison, deceased, for the construction of the will. The will is set out in full in the report of the case.
The assignments of error present two questions for review:
First. Does the power of sale for reinvestment, conferred upon the executrix under item 10 of the will extend to and include the family residence devised by item 2?
Taking the will as its own interpreter, we note: The family residence is devised to the sole use of the widow during life or widowhood. By the same item all the furniture, household goods, pictures, and other personalty connected with it, are devoted to like use, and thereafter to be divided among the children. The taxes, insurance, and upkeep of this property for the full period of the life estate of the widow is made a charge upon the estate of the testator. The power of sale in item 10 is coupled with a power to rent any portion of the estate. This is inconsistent with exclusive possession of the widow conferred by item 2. Item 7, directing the keeping together of the estate at large until George P. Harrison, Jr., arrives at the age of 25, declares the rents, income, and profits shall be divided between the widow and children. The power to rent in item 10 is to be taken in connection therewith.
We conclude, from the general structure of the will and the purposes expressed therein, that it was the intention of the testator to segregate the family residence from the remainder of the estate, and by item 2 give a full and complete expression of the testamentary purpose touching its disposition, and that the power to sell or to rent conferred upon the executors is limited to the remainder of the estate covered by items 7 and 8. We find no error in the decree of the court below in the construction of the power conferred upon the executors in the will.
Second. Is the devise of the remainder interest in the property under item 2 limited, upon the death or marriage of the widow, "to such of my children as may be then living, to be equally divided between them, share and share alike," a vested or contingent remainder?
We answer: A vested remainder. The law favors vested rather than contingent estates. The remainder here takes effect in possession upon a certain event — the death of the widow. A devise to a class, such as the children of decedent, persons in being at the death of the testator, having a present right of enjoyment in case the particular estate should fall in, is not rendered uncertain, because, by the death of one or all pending the life estate they may never come into the personal enjoyment of the devise. Here the devise is to the children, the heirs who take the fee by inheritance when not otherwise disposed of. If they take only a contingent estate, the fee meantime must be treated as in abeyance, another result not favored in law.
The will bears internal evidence of an actual intent to create a vested remainder in keeping with the general rules of law. By item 9 the testator makes disposition of his estate in the event of the death of his wife or one or both the children prior to the death of the testator. On the death of the wife, the whole property was to go to the two children equally; on the death of one child, to the widow and surviving child equally; on the death of the wife and one child, to the surviving child; and, on the death of both children, to the surviving widow. In all these provisions the testator speaks of the share the deceased would have taken had he or she "lived until after my death." It will be noted no right of survivorship is declared in the widow except in case of death of the children prior to the death of the testator. As between the children, the residence property goes to the child or children living at the death of the widow, and, as to the other estate, those living when George P. Harrison, Jr., arrives at 25 years of age.
Children "who may be then living" is used in item 2 touching the succession to the residence property, and also in item 8 relating to the other estate. This clause in item 8 cannot be construed as creating contingent remainders, because by item 7 a beneficial interest in the rents, income, and profits is expressly declared in the children from and after the testator's death. The clause is not used as defining the quality of the estate, but to declare a right of survivorship as between the children.
We conclude the will created vested remainder interests in the children, subject to the right of survivorship therein declared. The remainder interest of Mamie was not absolute, but defeasible upon her death pending the life estate without issue surviving. Upon her death, no further survivorship among children being possible, the remainder in the residence property vested absolutely in George P. Harrison, Jr. This, we think, gives effect to the testamentary purpose, and is in accord with the settled rule in Alabama governing such devises. Acree v. Dabney, 133 Ala. 437, 32 So. 127; Duncan v. De Yampert, 182 Ala. 528, 62 So. 673; Pearce v. Pearce, 199 Ala. 491, 497, 74 So. 952; Reynolds: v. Love, 191 Ala. 218, 68 So. 27; Bingham v. Sumner, 206 Ala. 276, 89 So. 479; Thorington v. Hall, 111 Ala. 323, 21 So. 335, 56 Am. St. Rep. 54; 2 Wn. Real Prop. §§ 1525, 1545, 21 C. J. p. 984; Crawford v. Carlisle, 206 Ala. 379, 89 So. 565.
Reversed and remanded.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.