It is a well-settled rule of a testamentary construction that, when the testator makes provision against the death of a beneficiary by otherwise disposing of his estate or interest upon such a contingency, such beneficiary takes a vested estate upon the death of the testator; the principle being that words of survivorship in a will, unless there is a manifest intent to the contrary, always relate to the death of the testator. Spira v. Frenkel, 210 Ala. 27, 97 So. 104, wherein the cases are collected. This is a presumption founded in part upon the idea that the testator favored the taker first named and in part upon the preference of the law for the early vesting of estates.
There is, however, a well-settled exception to this rule, viz., that, where the testator postpones the distribution of his estate to be made to the members of a class until the happening of some event, or until a specified time, then only those who survive as members of the class when the contingency occurs or the time arrives are entitled to share in the distribution. Burleson v. Mays, 189 Ala. 107, 119, 66 So. 36,40; Darrow v. Florence, 206 Ala. 675, 91 So. 606; Smith v. Smith, 157 Ala. 79 (6), 47 So. 220, 25 L.R.A. (N.S.) 1045; 28 R. C. L. 264, § 238.
But since the rule, as well as the exception, rests upon the presumption of a testamentary intent, whenever the context of the will shows a contrary intent the presumption is rebutted, and the rule of construction is without any field for operation. Smith v. Smith, supra; Matter of Smith, 131 N.Y. 239,30 N.E. 130, 27 Am. St. Rep. 586; 28 R. C. L. 264, § 238.
Whether the rule which postpones the vesting of an interest or estate in a beneficiary until the time named for distribution, i. e., upon the termination of a prior life estate, and limits the beneficiaries to those who may be then living, is operative equally whether the beneficiary remaindermen are designated each by name or are designated generally as members of a class we need not now determine. See, however, Denny v. Kettell, 135 Mass. 138, limiting Blanchard v. Blanchard, 1 Allen (Mass.) 223. The language of the will in Burleson v. Mays, 189 Ala. 107, 66 So. 36, is materially different from the language of the will in this case, and it is not decisive in this question.
In the instant case we think the question of the vesting of the remainder interests in the several devisees and legatees named in the will — specifically, whether E. L. Burney took a vested estate under his devise upon the death of the testator, or merely a contingent estate to be defeated by his death before the termination of the widow's life estate — must be determined in favor of the first alternative, *Page 399 because contextual provisions indicate that such was the testator's intention.
We see no way to reconcile with any other theory the provision of item 3, subdivision a, that E. L. Burney should pay to the granddaughter, Lucile Wallace, $500 "out of the property bequeathed to him," the payment of which he is required to make within one year from the date of the testator's death. Such a provision and such a requirement are essentially inconsistent with an intention to bequeath (meaning, of course, to give and devise) the property to E. L. Burney only contingently upon his survival of the widow, and not upon his survival merely of the testator.
E. L. Burney could not pay $500 "out of" the property unless it were vested in him, and the time of its payment has no relation to the time of the death of the widow. It will not do to say that the testator intended the legacy of $500 to Lucile Wallace to vest in her at once (as he manifestly did intend), but that he intended that the property "out of" which its devisee was required to pay it would vest in him only at some uncertain future time — possibly many years later.
By item 2 of the will the testator gives, devises, and bequeaths to his wife all of his property, real and personal, "to have during her natural life, provided, however, thatshe remain single. (Italics supplied.)" In the ordinary course she might very well have remarried within twelve months after the testator's death, thus terminating her estate. Can it be supposed, with any show of reason, that the testator intended, in such an event, that the property given by him to his children and grandchild, severally, should remain unvested and untouched until the death of his wife? Such an intention would, we think, be wholly unnatural and improbable, since it would largely defeat the very purpose for which he had carefully provided, viz., the enjoyment of the devises and legacies by his chosen beneficiaries as soon as the widow's interest was terminated or defeated.
It is evident that the writer of the will was not skilled in the use of testamentary language, and did not use some of his words and phrases with due technical precision — as pointed out by Justice Miller in his dissenting opinion; and we are convinced, from a survey of the entire instrument, that by the first clause of item 3, providing that the division of his property as thereunder devised or bequeathed should be made after the death of his wife, the testator intended to postpone the period of enjoyment only, consistently with the widow's estate, and not to postpone the time of its vesting in the beneficiaries named.
It results that the mortgage given by E. L. Burney to the respondents after the death of the testator conveyed to them the then vested interest of E. L. Burney in the land devised to him; and that neither the mortgage nor the deed of sale thereunder is subject to cancellation at the suit of complainants.
We hold that the demurrer to the bill should have been sustained, and the decree of the circuit court will be reversed, and the cause remanded for further proceedings.
Reversed and remanded.
ANDERSON, C. J., and GARDNER, THOMAS, and BOULDIN, JJ., concur.