Prater v. Hughston , 202 Ala. 192 ( 1918 )

In Abercrombie v. Abercrombie, 27 Ala. 495, is the following:

"There is no legal principle more firmly established and none that has received more constant and uniform support from the judicial tribunals than the rule which declares that an omission in a written will cannot be supplied by parol evidence."

And in Sherrod v. Sherrod, 38 Ala. 537, it was said:

"Nor is it the province of the court to provide for a contingency neglected in the will, because there is room for conjecture that the testator would have done so, had he anticipated it."

The majority opinion gives the right to George and Garfield Prater to select the 40 acres of land from the body of land owned by the testatrix, and this conclusion is reached by way of implication, as there is nothing whatever "within the four corners of the will" indicating any purpose on the part of the testatrix that they should have such right of selection.

A construction by implication should be so strong as that a contrary intention to that imported cannot be supposed to have existed in the mind of the testator. Wolff v. Loeb, 98 Ala. 426,13 So. 744.

I recognize fully that the authorities cited in the majority opinion support the same, and I have carefully examined them. To my mind the reasoning is unsound, and by no means very clear, and the impression is left that the courts were straining at the law in order to prevent a device being declared void for uncertainty. I, of course, have the greatest respect for the authorities cited, but am unable to give my consent to follow in their wake. In my opinion, they are out of harmony with the decisions of this court, and more danger lurks in their adoption than in following what in my judgment the previous rulings of this court clearly indicate to be the safer course. I therefore respectfully dissent.