The last will and testament of Mildred M. Haigler, deceased, executed June 22, 1892, contains these presently important provisions:
"I do hereby will and bequeath to my husband, David H. Haigler, and my children, all of real and personal property, moneys, and all other properties that I now possess, or that I *Page 481 may hereafter inherit, either personal or real. Should my children die before my husband, he, the said D. H. Haigler, shall inherit their share, and at his death, it shall revert back to my nearest of kin."
The testatrix died in May, 1894. The instrument was seasonably probated. The testatrix and her husband had two children at the time the will was executed. They were Henry Whipple and the appellee, Margaret Haigler. These children were living when testatrix died in May, 1894. On July 24, 1918, Henry Whipple Haigler died, intestate and without heirs other than the appellant and the appellee, his father and sister, respectively. The question presented for decision in the court below and again on this appeal is whether David H. Haigler took a life estate in the undivided one-third interest, in the land described in the bill, that passed to Henry Whipple Haigler, since deceased, or, according to the appellee's contention, whether, under the statutes of descent, there passed to appellee an undivided one-half interest in and to the undivided one-third interest devised to Henry Whipple Haigler, since deceased, by the will of his mother, Mildred M. Haigler, deceased.
Under the will of his mother, Henry Whipple Haigler took an unqualified estate in fee in an undivided one-third interest in the land described in the bill. He became a tenant in common therein, with his father and sister. In accordance with the very recently restated doctrine of Burleson v. Mays, 189 Ala. 107,66 So. 36, and O'Connell v. O'Connell, 196 Ala. 224,72 So. 81; both distinguishing the result attained on second appeal in Smith v. Smith, 157 Ala. 79, 47 So. 220, 25 L.R.A. (N.S.) 1045, from the operation of the rules repeated in these later cases, it must be held, as the court below decided, that the period during which the will's provision for survivorship should have effect was restricted to the lifetime of the testatrix, and was not projected beyond the decease of the testatrix.
The decree of the court below, so construing the will of Mrs. Haigler, was well rendered. It is affirmed.
Affirmed.
ANDERSON, C. J., and MAYFIELD and GARDNER, JJ., concur.