While I concur in the result attained on this appeal, as well as in much that is written in the opinion of Justice SAYRE, I am unable to discover in the will of Mrs. Sumner the slightest, remotest manifestation of a testamentary intent to create in or to devise to her husband, Martin T. Sumner, individually, a life estate in these lands. The only references in this will to Martin T. Sumner are to him as husband and trustee or as executor. The devise in item 1 of the will is to him "in trust nevertheless." Obviously a devise or bequest to one as trustee, "in trust," is not a devise or bequest to the individual named as trustee. The provisions of the will referring to the period "for and during his natural life," and other like phrases, were introduced to define the duration of the trust he was nominated as trustee to administer under the broadest discretionary powers, and so on the theory that her child or children would survive her husband, the trustee. Upon him, as trustee was imposed the duty to serve the interests of the cestuis que trust, viz. the son Percy and any child later born. His exemption from accountability to the beneficiaries of the trust or to any one else for his acts and doings as trustee certainly did not operate — was not intended by testatrix to operate — to create a life or other estate in the property that would or could take precedence over the primary objects of the testatrix's maternal desire, viz. her child or children. Not *Page 270 only is there in the will no sort of expression of an intent to invest Martin T. Sumner with a life estate in her properties, but there is a complete absence of any recognition of right, power, or authority in him to share in or to personally appropriate the rents, incomes, profits, principal, or substance of or arising from her estate. He was given a wide discretion, predicated doubtless of worthy notions of his natural fidelity to their child or children; but to Martin T. Sumner, individually, she did not give or devise anything in her will.
"A construction in favor of a devise or a bequest by implication should be so strong as that a contrary intention to that imported cannot be supposed to have existed in the mind of the testator; and such a construction, it is held, should never be adopted except in cases where, after careful and full consideration of the whole will, the mind of the court is convinced that the testator intended to make the devise or bequest. * * * The implication, as we have said in Sherrod v. Sherrod, 38 Ala. 543, must not rest on conjecture; it must be necessary, and so plain as to be irresistible to the mind." Wolffe v. Loeb, 98 Ala. p. 433, 13 So. 746.
There is no expression or intimation in this will that would justify, under the established rules quoted, an affirmation of a devise or bequest by implication pending the life of Percy or the other child.
Could a creditor of Martin T. Sumner individually have secured the satisfaction of his demand by levy upon Martin T. Sumner's life estate in this land? If so, then the whole design of the testatrix could have been deflected and defeated. Perhaps that possibility inspired Mrs. Sumner's declination to devise or bequeath any precedent estate to her husband individually. There being created by the will no life or other precedent estate upon which to pend a contingent or other remainder, my judgment is that no reversionary estate was created or contemplated by the will; that the child or children of testatrix took no estate in præsenti; and that, since neither of the children survived the trustee, Martin T. Sumner [item 5], and since they left no descendants [item 5], Mrs. Sumner has become intestate, the trust she designed having failed for want of a beneficiary or beneficiaries. Abercrombie v. Abercrombie, 27 Ala. 489, 496, 497; 1 Jarman on Wills (6th Ed.) 527 et seq. See Trustees of Cumberland University v. Caldwell, 203 Ala. 590, 84 So. 847, 848, et seq.
It results from the conclusions here but summarized that upon the death of Percy Sumner, without descendants, and the termination of the trust, Martin T. Sumner became entitled to a life estate in these lands under Code, § 3765.