This appeal involves the construction of one item of the last will and testament of Daniel Gilchrist, who died in the winter of 1854-55. The will had been executed in 1851. On the dates mentioned, John A. Gilchrist had no children — he had never married. The point of difference is located in item 6 of the will reading as follows:
"Item sixth, I will and bequeath to my youngest and beloved son, John A. Gilchrist, and his children, all the lands that are described in division second, in Alabama, and all the negroes in division second reserving to his mother a lifetime estate in part of the Alabama division as heretofore specified. The land described in Middle Tennessee and western district to himself."
The will contained schedules of testator's property in Alabama and Tennessee, which are by testator referred to as divisions. The *Page 290 report of the case reproduces items third, fourth, and fifth of the will, to which the briefs refer. The lands in suit are a part of the lands described in the sixth item of the will as in "division second in Alabama." Appellants, plaintiffs in the trial court, claimed in their right as children and heirs at law of John A. Gilchrist, who died in 1915, less than 10 years before this suit was brought. Appellees, through mesne conveyances, deraigned title from John A., who conveyed, in 1859 and 1886, to G. T. and W. T. Kyle. The facts were not in dispute.
Obviously, the document in question was drawn by a hand unskilled in the use of technical terms, and it is to be conceded that greater latitude of construction must be indulged than in cases where the instrument appears to have been drawn by one acquainted with the force and effect of legal terms — this to the end that the true intention of the testator may be made effectual. Porter v. Henderson, 82 So. 668, 203 Ala. 314; Montgomery v. Wilson, 66 So. 503, 189 Ala. 212; May v. Ritchie, 65 Ala. 603.
In the brief for appellants, stress is laid upon the fact that testator, when disposing of the land in controversy (disposed of in the fore part of the sixth item of the will), gave it to "John A. Gilchrist and his children," whereas, in the concluding clause of the same item he devised land in Middle Tennessee "to himself" (meaning John A.), thereby evidently intending to vest a fee in his devisee. A somewhat similar method of devise is shown by item 4, and the language of the fifth item is also referred to as evidencing a discrimination by testator between a devise to his daughter "and her body heirs" and a devise "to herself" — meaning to his daughter in fee. Looking to the will as a whole for what light such inspection may shed upon each of its segregate parts, and conceding, without deciding, because for one thing, we are not informed as to facts necessary to an intelligent construction of those items, that items 4 and 5 created estates in remainder in the "children" in one case — this mainly by reason of the use of the words "after them" — and in the "body heirs" in the other, still we are unable to see our way to that construction of the sixth item which would vest in John A. Gilchrist a life estate only, with remainder in fee to his children then unborn.
Under the doctrine of Wild's Case, 6 Coke Rep. 17; 10 Eng. Rut. Cas. 773, it is clear that the children of John A. took nothing by the will (Shuttle Weaver Land Co. v. Barker, 60 So. 157, 178 Ala. 372; Vanzant v. Morris, 25 Ala. 285), because John A., at the time of the devise, had no children. The statute converted the common-law estate tail thus created into a fee in the first taker. Code 1923, § 6901. It is true, as stated in Williams v. McConico, 36 Ala. 29, that, in such cases, notwithstanding the rule adverted to, slight indications in the context have frequently been thought sufficient to justify a holding that the parent shall take for life, with remainder to his children, especially where, in a devise of land, there are children in esse at the time; but a devise to A. and his children, without more, A. having no children at the time, has never, in this state, been held to create any interest in after-born children as purchasers, and "thus the cases have established, it should seem, that a devise to a man and his children, he having none at the time of the devise, gives him an estate tail." 2 Jar. on Wills (6th Ed.) p. 385; Shuttle Weaver v. Barker, supra, and cases there cited. But, the books further say, and perhaps this is but another form of the rule heretofore stated on the authority of Williams v. McConico, that it is not permissible to disregard established rules of interpretation in the absence of peculiarities in the instrument evincing the necessity for so doing in order to give effect to the donor's intention. Rosenau v. Childress, 20 So. 95, 111 Ala. 220.
Without laying exaggerated stress on technical rules, we have sought to ascertain testator's intention from the instrument he prepared to govern the devolution of his estate. We have referred to the "slight indications" which in the case of this will are urged as sufficient reason for departing from the well-settled rule to which we referred in Shuttle Weaver v. Barker, as sufficient reason for holding that John A. Gilchrist took an estate for life only. On the other hand, we note, as a circumstance of some importance, the fact that both items 3 and 6 afford evidence that testator was not at a loss in those instances at least for plain and adequate language by which to create an estate for life, with remainder over when that was his purpose. Montgomery v. Wilson, 66 So. 503, 189 Ala. 213. Upon the whole we can find no sufficient reason why the devise of lands in Middle Tennessee "to himself" — meaning John A. Gilchrist — should prevent the application to another devise, even though in the same item, of the long-settled rule of the common law by which a devise to one and his children, he having no children at the time, was held to create an estate tail, but which, by our statute, is converted into an unqualified fee.
We have accepted the doctrine of the cases cited by appellants (Williams v. McConico, 36 Ala. 22; May v. Ritchie,65 Ala. 602; Slayton v. Blount, 9 So. 241, 93 Ala. 575; Campbell v. Noble, 19 So. 28, 110 Ala. 382; and Rutland v. Emanuel, 80 So. 107, 202 Ala. 269), viz.: That the courts must not be too technical in the construction of technical terms when employed by persons not skilled in the use of such terms; but, further than that, they may without difficulty be differentiated from the case under consideration. *Page 291
The judgment of the circuit court is affirmed.
Affirmed.
ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.