Bell v. Killian’s Empirical Analysis

Citation profile

5 federal appellate · 22 state decisions

Most-quoted passages

The sentences later courts lift from this opinion, ranked by how many decisions quote each — the parts of the opinion doing the work. These counts are smaller than the citation total above because most of the 32 citing decisions cite the case generally; a passage count includes only decisions quoting that exact language verbatim.

1. “Under our cases, a general devise of this nature which fails to specifically define the extent of the estate created, does not necessarily import an absolute fee if subsequent provisions of the will indicate that the testator intended a lesser estate. Patterson v. First National Bank of Mobile, supra [ 261 Ala. 601 , 75 So.2d 471 ]; Higdon v. Higdon, 243 Ala. 571, 574 , 11 So.2d 140 ; Schowalter v. Schowalter, supra [ 217 Ala. 418 , 116 So. 116 ]; Hatcher v. Rice, supra [ 213 Ala. 676 , 105 So. 881 ]. The applicable rule is thus stated in Patterson v. First National Bank, supra, 261 Ala. page 607, 75 So.2d at page 475 . “It is well settled that where a will does not expressly define the estate of the first taker, a devise over after his death is definitive of his estate and will be given effect in keeping with the intention of the testator, if not unlawful. Higdon v. Higdon, 243 Ala. 571 (6), 11 So.2d 140 .” The reasoning which supports this rule is sound. As with all canons of construction the purpose of the rule is merely to guide the courts in ascertaining the intention of the testator. In order to determine this intent it is obvious that the will must be considered as a whole. Therefore, when the testator makes a general devise without defining the extent of the estate which he wishes to create, and he subsequently provides for a remainder in the same property, it seems only logical to assume that he intended to qualify or limit the initial gift. There is no repug-nancy b”

   2 later decisions quote this exact passage
   e.g. Daniel v. Thomas · 385 So. 2d 990 - Hendrix v. Hester

2. “However, it may be said, in this connection, that such a life tenant with the power of disposition must act in good faith to the remainderman, and not give the property away to defeat or defraud the latter of his right or interest. That is to say, unless the power is ample, sufficiently specific and full, a life tenant may not give the property away by deed, merely to defeat a remainder interest limited on such life estate. It must be admitted that under the terms employed in the instant will there could be no devise of the interest or the power of appointment of those to enjoy what remained of the estate after death of the life tenant. Powell v. Pearson (Ala.Sup.), 220 Ala. 247 , 125 So. 39 . Such result could not be accomplished by way of a voluntary conveyance merely to destroy the corpus and prevent a remainder; or without a valuable consideration moving to and for the material benefit in good faith to such life tenancy. Any other rule would defeat the purposes of a testator (who stipulated for or contemplated a remainder or residue), and such action would be in the nature of a fraud upon her whom testator named to have and enjoy the residue of that estate. Yockers v. Hackmeyer, 203 Ala. 621 , 84 So. 709 .”

   1 later decision quote this exact passage
   e.g. Nevin v. Nevin

3. “‘When there is an unqualified provision in a will creating ‘an absolute estate in clear and decisive terms’ it is obvious that any subsequent clause which attempts to cut down or qualify this estate is repugnant to the first clause. Therefore, the courts have soundly reasoned that the intention of the testator to cut down an initial gift of an absolute estate must be in clear and decisive terms in order to have effect.””

   1 later decision quote this exact passage
   e.g. Windham v. Henderson