Summary
Appeal from the Chancery Court of Barbour.
Heard before the Hon. J. W. LesesNE.
Jethro DeNSON died on tbo 8th July, 1851,' in Barbour county, Alabama, after having made and published his last wiíl and testament, which was attested by three witnesses, and was as follows : ■ ■
“I, Jethro Denson, being at this’ time of sound mind, and in full possession of all my mental faculties, and knowing that I have to die, and desirous of leaving this will, and after commending my soul to the mercy and safe-keeping of Almighty G-od, who gave it, desire that my person and property shall," after my death, be disposed of as follows, to-wit — •
“1. That my body be decently interred by my executors.
“ 2. That my executors pay, Out of the proceeds "of my estate, all iny just debts.
“3. I will and bequeath to my son Matthew Denson my negro man Mdses.
' “4. I will -and bequeath to my son Archibald J. Denson my negro woman Nancy and her children, provided he takes up his permanent residence in Barbour county, Alabama ; if he"does not, then I desire my' executors to sell" her (Nancy) án'd "her children, at public dutcry, to tbe bigbést bidder, and pay over the proceeds of said sale into the hands of Archibald J. Denson, as his part of the estate.
“ 5. I will and 'bequeath to my daughter Mary Pitts my negro Aroman Yiolet and her children, and one girl named Silvy, to hare and to hold during her natural life, not subject to the debts of her husband, and after her death to be equally divided among the heirs of her body.
116. I will and bequeath to my daughter Nancy Screws my negro Avoman Mahala and her children, to haAre and to hold during her natural life, not subject to the debts of her husband, and to be equally divided after her death between the heirs of her body. I also will and bequeath to my daughter Nancy Screws the eighth of a section of land on which she and her husband hoav reside,” (particularly described,) “to have and to hold during her natural life, not subject to the debts of her husband, and after her death to be sold at public outcry, and the proceeds of the sale to be equally divided between the heirs of her body.
“ 7. I will and bequeath to my daughter Martha Mitchell my negro woman Morning and her children.
“ 8. I will and bequeath to my wife Rebecca my negro Avoman known as Little Ferriby, and her children and grandchildren, Avith the exception of her daughter Nancy. I further Avjll and bequeath to my wife Rebecca negro man George ; also a Avoman known as Big Ferriby, and her three youngest children; also, Iavo negro men, Cupid and Jack; also,.a woman known as Old .Nancy, and all of my household and kitchen furniture; also, fifteen head of stock cattle, five head of horses, one road wagon, and all of my stock of hogs, plantation tools, and farming utensils ; all of which she is to have and hold during her natural life, and at her death to dispose of at her own will and pleasure.
“ 9. I will and bequeath to my wife Rebecca my three negro men, Charles, Handy, and Joe; also, two girls, Caroline and Chancy; also, my plantation; to have and hold during her natural life, and after her death to bo sold at public outcry, and the proceeds of such sale to be equally divided between my children.
“ I desire the above to be my last will and testament, and hereby appoint Randolph Mitchell and my wife Rebecca my executors, and do hereunto affix and sign my name and seal”, &c.
Of the testator’s children named in this will, all of. whom survived him, Martha, the wife of Randolph Mitchell, was the only child of his wife Rebecca ; the others being born of a former wife. Mrs. Rebecca Denson afterwards died, to-wit, in January, 1852, intestate; and the slaves and other property bequeathed to her by the testator went into the possession of said Mitchell and wife, who claimed and held them as the separate estate of Mrs. Mitchell, as only heir-at-law of her mother. This bill was filed against them by the testator’s other children, who insist that. Mrs. Denson took but a life estate in the property ; and they pray for an account, distribution, and general relief.
The chancellor dismissed the bill for want of equity, holding, on the authority of Randall v. Shrader, 20 Ala. 338, that the absolute property vested in Mrs. Denson under the eighth clause in the testator’s will; and his decree is now assigned for error.
1. The importance of the introductory clause and preamble in. a will, as manifesting an intention of complete and ultimate disposition, has been gradually declining in courts both of law and equity. “After some fluctuation, it is at length clearly settled, that, although they make profession of disposing of all the testator’s property, in the fullest manner, they will not operate to carry the words of the devising clause beyond their legal sense and signification.”- — 1 Roberts on Wills 432-435; Yanderverker v. Vanderverker, 1 Barb. S. C. Rep. 221.
2. Whatever a testator does not grant by his will, remains in him, and reverts to his heirs and distributees, after the dispositions actually made by him are over. — 4 Kent’s Com. 353, Lecture 53.
3. The extent of the estate given to the widow is - express, certain, and clearly defined — “ to have and hold during her natural life”; the superadded power, “at her death to dispose of” (the very same property which was granted to her for her life), is a distinct gift, not of an additional interest or estate, but merely of a power to dispose by will and not by writing inter vivos. Such a power of disposal, even if it were general, in connection with an express estate for life so clearly defined, cannot operate by way of enlargement of the life estate into a fee. ' The implication, to control the technical meaning of words creating a previous express estate, must always be a neet&Socy. implication. No such implication arises here:— Cáfeh.-'V.Dana’s R. 346 ; Pate 'v. Barrett,'2 ib. 426; 16 Johns.’¿>8#; Rubey v.' Barnett, 12 Misso. 3; 10 Ves. 370; 1 P.' Wins. 140; Pulliam v.-Byrd, 2 Strob. Eq. 134; SmithV. •Hilliard, 8Hb- 2Í.4; Reith v. Seymour, 4 Russ. 263 ;' 1 Salk. 23.9'; Archibald v. Wright, 9 Sim. 162; 3 Litt. 415; Burwell ■v. Anderson, 3 Leigh’s R. 355; Smith v. Bell, 6 Peters’ Rep. 7&9f Ward'v. Amory, 1 Curtis’ R. 419; Keyes bn Chattels, §§156 to 170.
“ The express estate for life negatives the intention to give the absolute property, and converts these words into words of mere power, which, standing alone, would have been construed to convey an interest.” ' “ Where such inconsistent life estate is given, the fee does not pass; for this whole matter rests upon intention.” — 3 Leigh’s R. 356-7, and authorities supra.
A. bequeathed a slave to his wife for her life, and after her death to be emancipated : Held, that although the provision for the emancipation was void, yet the slave did not belong absolutely to the wife, but, after her death, went to the next of kin, or passed by the residuary clause, if there whs one. — Cresswell v. Embérsoh, 6 Ired. Eq. 151; ‘ Vannerson v. Culbertson, 10 Sm. & Marsh. 15Ó; 7'Barb. S. C. Rep. 221. The principle' of' these cases is; that the testator'expressly limits the duration of the estate to the life of the wife, and there is to be no enlargement of that estate by implication.
In a will, the grammatical construction must prevail, unless a contrary intent plainly appears. — Love v. Love, 5 Iréd. Eq. Rep. 201. ‘
1. The law never favors an intestacy as to any part of-the personalty, when there is a will.
2.' The general intention apparent in the will must prevail, unless forbidden by law. — Heirs of Capel v. McMillan, 8 Por. 197, and authorities cited oh pp. 204-5..
■ '3. 'Tohscertain'thé'intention,-every part”of the'Vill íá examined and compared, the one with tbe other. In a case of doubt whether an absolute or limited estate is given, the introductory part of the will may be referred to for the purpose of solving it. — Schriver v. Meyer, (1 Harris,) 19 Penn. 87, where many of the cases are reviewed; Wood ru
4. This rule is educed : Wherever the ii; an intention to dispose of the whole of the; and it can be brought down to and connect? clause, the introductory and devising clauMsi&íh consta together, and the interest devised thereby is 19 Pepn. 87; 14 S. & R. 95; 10 Wheat. 204-^
5. The property in the eighth clause .of the the wife absolutely. 1st. A bequest of personalty for life, with a general power of disposition, not limited as to the objects or mode, gives the absolute estate. — Randall v. Shrader, 20 Ala. 338, and cases cited in the opinion; 2 Wilson 6; 3 Ves. 299; 1 Leon. 256 ; 2 Ves. 588 ; 2 Atk. 102; 1 Wash. (Va.) 266 ; 10 Mod. 71; 16 Ves. 135; Í9 ib. 85. 2d. The intention of the testator was, to bestow this property absolutely on his wife. The introduction clearly shows an intention to dispose of “his property” (that is, of all his property) “as follows” (that is, as the- same is given in the following nine clauses); and this necessarily connects the introductory and devising clauses, and of course the eighth is connected with the introduction. The language and meaning of these clauses is, then, that he desires his property in the subjects named in the eighth clause to be disposed of as follows, &c.
Again ; looking at these .and the other parts of the will, the variety of bequests and variety of limitations on the other bequests, and the variance between the limitations in the eighth and ninth clauses, the inference is plain' — “ such as will satisfy the conscience of the court ” — that the object of the testator was to dispose of all his property, and to dispose of all his interest in the subjects mentioned in that clause. The eighth clause is by the terms of the introduction as much connected with it as the first clause is. This being the intention, the court will carry it into effect, as there is no prohibition of law against it.
The question is one of intention. We admit, when the limitation is for life, with a power of disposition, and the exercise of this power is restrained either as to the objects in whose favor it is to be exercised, or as to the manner in which it shall be exercised, the intention is apparent’that this is but a power, and not an interest. Or, if there was a limitation over, in default of the appointment or exercise of the power, then, also, this is evidence that the power should not be an interest, but an authority merely. On this view most of tho conflicting decisions may be reconciled. — 1 Sugd. on Powers, mar. p. 127. We claim, however, the benefit of the converse of these propositions — that when there is no limitation over on default of appointment, and no restriction as to the Objects or mode of exercise of the power, this is evidence of the intention to dispose of the property absolutely.
6. The words “ at her death”, following the words “during her life”, are equivalent to “ then”, and will be considered as words of relation, and not of time ; and that the remainder of the estate was to be disposed of at her will and pleasure; and that such disposition was to take effect at her death, and not that she was at the nioment of her death to have the power of disposition; for that would mean after her death, which is impossible. — Tomlinson v. Dighton, 10 Mod. 71; Boraston's case, 3 Coke 21-2.
7. When a general power of disposition is -reserved or given of property or a fund, in which the person having the power has no present interest, and can have none until a future event, as his death, the property or fund becomes his absolute estate on the happening of the event, without any exercise of the power. — 3 Atk. 269; 2 Yern. 181; 3 Atk. 656; 1 Vesey 267; .2 Atk. 172; 3 Leigh 348; 12 Miss. 3.
The principle of these decisions is, that ho who has such a power of disposition has all the attributes of ownership over the property at .the time the interest is to take effect if the power was exercised; and we assent to this as sound sense and law. Mrs. Denson had an estate for life, with the unlimited power to dispose of the property at her death. Has she loss of the attributes of ownership, than if she had been vested with the power of disposition at her death ? Has she a- less interest in the remainder, than if it had been to the children of Denson for tho life of the wife, and at her death to be at her disposition? Yet this is admitted-by all the authorities to vest the absolute estate in her at her death. The particular estate, and the power of disposition, are the same in both the above suppositions. The only difference is, in fact, the .particular estate is to be enjoyed by different persons.
These cases assert the following doctrine: “ Where there is a particular limited interest, and this sort of power, liberty or authority, though the latter without a particular partial interest pointed out might have amounted to an absolute gift, yet when both occur, the gift is held to be of the limited interest, and the other to be but a power, and not an interest.”
To analyze this : When a limited interest is given, with an unlimited power of disposition, the limitation of the interest is a limitation of the power. But if no “particular partial' interest had been pointed out”, but'there had been a general interest pointed out, or no interest pointed out, then the power “ might have amounted to an absolute gift ”; and these seem to have been adopted by American authorities as sound reasoning. We think there are two errors in it: first, if there had been a general interest pointed out or given, the power was unnecessary, and could not enlarge the estate; and, second, the power is limited by the particular estate, and not the estate by the power. The power succeeding the mention of the property given is the limitation of the interest. How would it be, if in his will he gave to his wife the unlimited power of disposition at her death, and gave to his children during her life the enjoyment of the property, and by a codicil had confirmed this will in all respects, save that he altered the estate for life from his children and gave it to his wife; or by will ■gave the property to his wife for life, and at her death to his children, and by a codicil revoked the gift of the remainder to his children, and gave to his wife the unlimited power of disposition at her death; can it be doubted what must be the construction put upon the will ? There is no difference in the cases, as to the legal effect. There is no limitation over in the will on default of appointment; and the children, not being named, stand precisely in the condition of the hypothesis, where the limitation of the remainder to them was revoked by the codicil.
The rule in the above authorities is one of construction only. They say, such an interest being limited is evidence that the testator did not mean the power to be an interest, but an authority merely. But if, from the other parts of the will, or the peculiar phraseology, it appears the testator. did intend this power as an interest, then these cases are of ,no authority, and the court will carry the intentiqn into effect.
These cases hold, further, that if the testator give the property for life, with directions to sell at the death,-and with a power to the tenant for life to dispose of the proceeds of the sale, the tenant for life takes an absolute estate in the whole proceeds. — !Vesey 267; B Leigh 348. It is inconceivable how a bequest for life, with power .to dispose.of the proceeds when sold at her death, is an absolute estate, while a power to dispose of the property itself is a mere authority.. It is a distinction without a difference; and the cases lose their weight as authority.
8. The negroes mentioned in the first sentence of the eighth clause were given absolutely. The two bequests, in this clause are disjoined, and the first is given without any limitation. — > 4 McCord 60;. 2 Strob. Eq. 327; Doug. 730; 8 D. & East 64.
Most of the cases cited by the appellants are cases in which there was either no power of .disposition, or there was a limitation over, or the power was limited as to the objects or the mode of exercise.
Randall v. Shrader, 20 Ala. 338, is identical with the present case ; the difference, if any, being in favor of the present case, as it is a will. The question in that case was, what interest did the wife take under the instrument? On the face of the writing, it was held, she took an absolute estate. The construction put on that deed and on this will must be the same. What interest did Mrs. Denson take under this will ? The provisions in the will and deed are, in legal effect, and almost in language, the same. The decision was a correct one, and commends itself to the good sense of every mind, legal or otherwise.
On the question of intention : Lands to a devisee, to be by him freely possessed and enjoyed, passed the absolute estate, although no words of inheritance were added, without which it was but a life estate ; but the intention was upheld. — 1 S. & R. 144; 12 ib. 54.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
