FURLOW'S ADM'R vs. MERRELL, 23 Ala. 705

GIBBONS, J. The court, in our opinion, committed no error in permitting the answer to the fifth interrogatory set out in the bill of exceptions to be read to the jury. The objections were, that this answer “was not responsive to the interrogatory, and because the same was illegal and irrelevant, the question being as to the will of George M. Hill, and the answer being as to a will of George M. Hill.” It will be seen, when this answer is compared with the interrogatory, that it is for the most part directly responsive thereto. Nor can we see how the testimony was illegal or irrelevant.

It is true, the will, when produced, purports to have been signed by George Hill, whereas the interrogatory is as to a will of George M. Hill. In the answer to this interrogatory, as well as in answer to the fourth cross-interrogatory, also sot out in the bill of exceptions, the witness seems to speak indifferently sometimes of George Hill and sometimes of George M. Hill, but, as explained in the answer to tho fourth cross-interrogatory, always meaning the same person, viz., tho father of Cynthia Hill, alias Cynthia Furlow.

If there was any doubt as to the- competency of tho answer to the fifth direct interrogatory standing by itself, that doubt, in our opinion, is entirely dispelled by the answer to the fourth cross-interrogatory; and this was introduced by the plaintiff below, in order to show the answer to the fifth direct interrogatory inadmissible. The effect, in our opinion, is the very reverse of what was intended by the party introducing it, as tho witness therein explains that, in speaking of a will made by George Hill or George id. Hill, he is all the while speaking of tho same person, and of him who made the will.

The defendant offered in evidence a paper purporting to be a copy of the will of George Hill. The bill of exceptions states, that the “plaintiff waived the necessity of the certificate of the judge to the'alleged copy will annexed, and admitted that W. B. Carter was the proper ordinary.” This copy will was appended to the answer of the fourth cross-interrogatory above referred to, which was offered by the plaintiff in evidence to the court, to show the incompeteney of the answer to the fifth direct interrogatory.

The language of the bill of exceptions is, “ which annexed paper was attached to the deposition of Allen Bartlett, with the certificates and endorsements thereon.” The copy set out in the bill of exceptions has no certificate attached to it, and the only (indorsement which wo observe is as follows :' “ Proven in open court, this 6th June, 1814, Coleman Pendleton, C. O.” Tho objections to the introduction of this paper were : “ that it did not purport to be the will of George M.

Hill inquired after; 2nd, because of the uncertainty of tho proof, as to the identity of tho will and of tho testator, the will deposed to being attested by only two witnesses, and that offered in evidence was attested by three ; 3rd, because there was no sufficient evidence of probate or of the same having been probated, that there was no such evidence offered’ as would authorize the reading of said paper as a will, no evidence of letters testamentary or of administration with the will annexed; and 4th, because the bequest was to Cynthia Hill, when there was no such person in existence, as her rights were merged in her husband, John Fur low.” These several objections wo shall not take the trouble to examine minutely in detail, as the circumstances under which they are made relieve us from that necessity.

According to a well established rule of this court, the bill of exceptions will be taken most strongly against the party excepting, and every reasonable and legitimate intendment will be made in favor of the decision of the court below. As above remarked, the above mentioned copy of the will comes appended to the fourth cross-interrogatory .of the plaintiff below, whilst the interrogatory itself is not set out.

It is clear, if the plaintiff had called upon this witness to append a copy of the will to his answer to the fourth cross-interrogatory, he would thereby be estopped from objecting to it as evidence in the cause; having himself called for it, if the other party -wishes it it must be read to the jury.—Vide Edgar v. McCarn, at the present term. In the absence of the interrogatory propounded to the witness, we think it but fair to presume that the answer was responsive to the matter inquired of, and that the witness did that only which he was requested to do.

If this is not the fact, and the plaintiff wished to rebut this legal presumption, he should have set out the interrogatory with the answer, in order that we might see whether the copy of the will was called for by it or not. There was, therefore, no error in permitting this copy of the will to be read to the jury at the instance of the defendant in the court below. Independent, however, of these considerations, -we do not consider the objections well taken, as the three first raise the question, whether the will was in fact the one under which the defendant claimed title.

This was a question of fact to be decided by the jury, and the plaintiff had the right to have the attention of the jury directed to this inquiry, by asking the appropriate charges, if he had thought proper. The fourth objection we could not sustain, if for no other reason than the fact that we are entirely unable to gather from the bill of exceptions whether Cynthia Hill was married or not when the will was made. This objection assumes such to be the fact; hut the bill of exceptions does not, in our opinion, warrant the assumption.

The only testimony upon the subject set out in the bill of exceptions is the answer of Bar Jett to the fifth direct interrogatory, in which he says, “he does not remember now whether Furlow was married to his wife Cynthia at the time the will was made, but he thinks he was.” But, if Furlow was married at the time the will was made, we apprehend his wife Cynthia would not loose a bequest, which happened to be made to her by her maiden name, if it was clear that slm was the person intended as the legatee by the testator.

The only remaining question is as to the charge of the court, and this raises the question as to what estate the said Cynthia Furlow, alias Cynthia Hill, took in the bequest made to her in the will.

The words are: “I give to my daughter, Cynthia Hill, one negro girl, named Ann, together with all her increase, entirely for my daughter and her children.” The court charged the jury, that the above bequest gave to Cynthia Hill, alias Cynthia Furlow, “a separate estate, and excluded the marital rights of the husband ; and that no such estate vested in John Fur-low as rvould authorize his administrator to recover, and they must find for the defendant.” As above remarked, we are entirely unable to gather from the present record whether the legatee, Cynthia Hill, was married or not at the time the will was made, nor does it appear whether or not there were any children at the time that the testator died.

These facts are, in our opinion, essential in order to determine, with any thing like precision, the rights that accrued to the legatee under the will at the time that the bequest took effect. Both the counsel in the cause, and the court, seem to have taken it for granted that the legatee was married at the time the will was made; but the only proof upon that subject which the record contains leaves the matter entirely in doubt.

The words of the bequest, as we construe them, would under ordinary circumstances be sufficient to create a separate estate, if the legatee was married at the time the will was made, but not otherwise. But these words, when considered in reference to the whole will, we do not consider as indicative of any thing appertaining to the rights of her husband, if she then had one, or of one which she might have. It will be recollected that the testator has given negro women to other legatees with incumbrances upon them; as ft»; instance, to John M.

Hill is given one negro woman, with a proviso that her first child should be the property of Mary Hill, the sister of the legatee, but a life-estate in the same negro is reserved to the father, Manning D. Hill; one other negro is bequeathed in a similar manner. Our conclusion, therefore, is, that the words “ entirely for my daughter’s benefit and her children,” relate not to the marital rights of the husband of the legatee, but to the quantity of the estate which the legatee was to take, as compared with some of the other legatees in the will who took incumbered legacies.

The court below probably based its charge upon the idea that the words above mentioned, as employed in the will, were used with the intention of excluding the marital rights of the husband of the legatee; but such, from a careful examination of the whole will, is not our conclusion. Admit, for the present, that the court misconstrued the language of the bequest, in supposing that it created a separate estate in the legatee, upon which the marital rights of the husband could not attach ; it yet remains to be seen whether there was any error in the charge of the court of which the plaintiff in errer can complain.

As above remarked, it docs not appear from the present record whether the legatee was married or not, neither does it appear whether she had any children at the time the legacy took effect. This latter fact, as we construe the words of the bequest, is absolutely essential to be known, in order to determine with any accuracy the estate which Cynthia Hill took in the bequest.

If she was then unmarried, the words of the bequest would, in our opinion, create a life-estate simply in Cynthia Hill, with remainder over to her children ; but if she was married and had children at the time that the will took effect, then she would take absolutely a joint estate with the children.—Nimmo v. Stewart, 21 Ala. 682. In the latter case, then, Mrs.

Furlow would have an interest to which the marital rights of the husband would attach, and that interest would pass to his representativos; but in the former case, Cynthia Hill, alias Furlow, would take only a life-estate, with remainder, or rather a springing use, in favor of her children at her death. In the latter case, it is clear that the administrator of the husband could maintain no suit for the property after the life-estate of the wife had ceased by her death, as by that event the right of the children in the property would become complete.

The record being silent as to the facts relative to the status of the legatee at the time the bequest took effect, and also as to whether there were then any children, the same principle again arises already invoked in a former part of this opinion, viz., that the bill of exceptions is to be construed most strongly against tho party excepting. In the absence of proof, therefore, we are bound to presume that Cynthia Hill was unmarried at tho time the will was made and tho bequest took effect, and that no children of the said Cynthia were then in existence.

This is by no means a violent presumption, as she is called by her maiden name in tne will, and it is but fair to conclude that, if she was then Mrs. Furlow, her father would have called her by that name in bis will. Indeed this presumption is strengthened by tbe fact, that in the same will the testator makes another bequest to another of bis daughters by the name of her husband.

Assuming then tho fact tó be that the legatee was unmarried at the time that the bequest took effect, and she being proved to have died before this action was brought, it is manifest that the plaintiff, as administrator of Furlow, couldjlnot recover the property,- and the instruction of the court to the jury, that they must find for the defendant, was right, although a wrong reason was assigned for it. Our conclusion is, that there is no error in the record of which tho plaintiff in error can complain, and the judgment of the court below is consequently affirmed.