LOCKE, District Judge.
The two principal grounds of error which, require examination are: First, the charge of the court in regard to the construction of the will of John Timmons; second, the date of the commencement, and the presumption of continuance, of the statute of limitation. '
In the construction of all wills, unquestionably, the intention of the testator is the governing principle, — the point to which all examination should be directed. 2 Bl. Comm. 499; Inglis v. Sailors’ Snug Harbour, 3 Pet. 99; Finlay v. King, Id. 346; Smith v. Bell, 6 Pet. 68; Given v. Hilton, 95 U. S. 591. The circumstances of each individual case vary so much from those of most other cases that it is difficult to determine from the explanation or the construction of one will what would control in the construction of another; and, although there may be general principles tending to assist courts in determining the intention of the testator, yet they can be but advisory, and not controlling. Such rules are to be used" as helps towards reaching the intention of the testator, “making them our servants rather than our masters.” 1 Redf. Wills, 420. It is in many cases impossible to determine, beyond the possibility of a doubt, what the intention of the testator was; and all that can be done is to ascertain, from all the facts and circumstances surrounding him, his property, and those to whom it is left, and the language of the will, what probably was intended. A careful examination of the numerous cases cited by counsel on each side satisfies us that that has been the controlling principle. In this case both the testator and the party who drew up his will were unlettered men, unlearned in the technical terms of the law or the artificial meanings which have attached to such expressions, and to neither of them would the legal terms, “life estate,” “fee simple,” or “remainder,” probably present any clear and distinct idea of property or rights of property. The terms “his” and “hers” can safely be presumed to denote their idea of entire possession or ownership. The testator was a man of small property, consisting more largely of slaves than of any other class. He had, to some extent, made his living, and accumulated what property he had, by running a hack line from Elyton to Blount Springs, with the horses he directed to be sold, and had not relied solely upon his farm. The landed estate was , such as could bring no rents, profits, or income, without being carried on by manual labor. Much of the land was in wood and timber, —rough, rocky, and hilly, — not regarded as fit for cultivation; and some of the cleared land was poor and low. His wife, the only member of his family, would necessarily be the principal object of his interest, and the one in whose welfare he would be most directly concerned. In his anxiety to provide for the payment of all his debts. [767]*767lie liad willed that his negro man, Frank, should he sold, and also his horses and such cattle and all other articles as his wife did not wish to keep, hut the rest was to be his wife’s, unless the subsequent conditions should defeat or modify such devise. The one important question in this case, in regard to the construction of the will, is whether the language, “during her natural life,” shall he held to imply a limitation upon the right of his wife, Sarah Timmons, to dispose of any of the property by alienation. Such restriction, if held applicable to the farm, would necessarily apply to all of the property, both real and personal, and would prohibit her from disposing of more than a life interest in any of it. It is apparent there were certain things clearly intended by his will: First, that the testator wanted to have his debts paid by the sale of his negro man, and such horses and cattle and other articles as his wife did not care to keep. Next, that the horses and farm, with all its appurtenances, and all other articles, should he his wife’s, and at her disposal, and the negro woman, Rose, and her two children and increase, should he hers, and at her disposal, during her natural life, and that his mother and sister should he provided for, to a certain extent. The other provisions of ihe will may he examined to assist in determining what his intention was In the use of the term, “during her natural life,” for upon what that intention was this entire question depends. Had the will not been punctuated, there would be but little difficulty in determining that the term “during her natural life” only related to the disposal of the woman Rose and her children, with which it is most directly connected, as the principle laid down by Mr. Jarman in his Rule 18, (Jarm. Wills, p. 706,) that, “where the testator uses an additional word or phrase, he must he presumed to have an additional meaning,” may he well applied. The first list of articles, horses, farm, etc., had been declared to be his wife’s, and at her disposal; then Rose and her children should be hers, and at her disposal, during her natural life. The first unlimited use of the term “disposal,” followed by its second use. directly modified and limited by the words, “during her natural life,” would he a strong presumption of an intentional modification, and the comma separating- the clauses denoting the disposal would add to that presumption. When the form of the expression is varied in relation to Ihe different devises the presumption is that the intention of the testator is different.
Rut admitting that the limiting clause, “during her natural life,” may have been intended to refer to the term “disposal” in both cases, it is not considered that then it would necessarily imply an intention of the testator to deprive his wife of the power of disposing of any portion of ihe properly left lo her, except as a life interest. If the limitation was intended to he applied to the farm, it must he so applied to every article of personal property except that which she might give to Lydia A. Gres wood. The character and condition of his property after the sale of his negro man, Frank, and his horses, to pay debts, would not be such that in our view it can be properly presumed that it was the intention of the testator to compel his wife to retain and carry on the farm, support his mother and sister, and pay them [768]*768$100, and give a portion of the property to Lydia A. Greswood when she left, with no power to sell or dispose of anything except for her life. The onlv assistance she could have in this must be the one female slave with two small children. If such were the case, his liberality to his mother, sister, and Lydia Greswood, was far greater than to his wife, which we do not consider, from the relations shown to exist between them, could have been the case. We do not consider that the terms of the will and the surrounding circumstances would imply that it was the intention of the testator to compel a remainder by depriving his wife of everything except the power to procure a bare subsistence. In providing for “what might remain,” he expressed in ordinary terms what his desire was regarding what might remain not disposed of at her death. The fact that such a limitation upon her power to devise what was left to her as hers might or might not be held valid in law can have no more weight in determining his intention than would his lack of knowledge that his bequest to the missionary cause was invalid for uncertainty; and if it appears that his intention was to permit alienation, and not devise, the alienation could not be prohibited because his intended prohibition of her power to devise might be held to be invalid.
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LOCKE, District Judge.
The two principal grounds of error which, require examination are: First, the charge of the court in regard to the construction of the will of John Timmons; second, the date of the commencement, and the presumption of continuance, of the statute of limitation. '
In the construction of all wills, unquestionably, the intention of the testator is the governing principle, — the point to which all examination should be directed. 2 Bl. Comm. 499; Inglis v. Sailors’ Snug Harbour, 3 Pet. 99; Finlay v. King, Id. 346; Smith v. Bell, 6 Pet. 68; Given v. Hilton, 95 U. S. 591. The circumstances of each individual case vary so much from those of most other cases that it is difficult to determine from the explanation or the construction of one will what would control in the construction of another; and, although there may be general principles tending to assist courts in determining the intention of the testator, yet they can be but advisory, and not controlling. Such rules are to be used" as helps towards reaching the intention of the testator, “making them our servants rather than our masters.” 1 Redf. Wills, 420. It is in many cases impossible to determine, beyond the possibility of a doubt, what the intention of the testator was; and all that can be done is to ascertain, from all the facts and circumstances surrounding him, his property, and those to whom it is left, and the language of the will, what probably was intended. A careful examination of the numerous cases cited by counsel on each side satisfies us that that has been the controlling principle. In this case both the testator and the party who drew up his will were unlettered men, unlearned in the technical terms of the law or the artificial meanings which have attached to such expressions, and to neither of them would the legal terms, “life estate,” “fee simple,” or “remainder,” probably present any clear and distinct idea of property or rights of property. The terms “his” and “hers” can safely be presumed to denote their idea of entire possession or ownership. The testator was a man of small property, consisting more largely of slaves than of any other class. He had, to some extent, made his living, and accumulated what property he had, by running a hack line from Elyton to Blount Springs, with the horses he directed to be sold, and had not relied solely upon his farm. The landed estate was , such as could bring no rents, profits, or income, without being carried on by manual labor. Much of the land was in wood and timber, —rough, rocky, and hilly, — not regarded as fit for cultivation; and some of the cleared land was poor and low. His wife, the only member of his family, would necessarily be the principal object of his interest, and the one in whose welfare he would be most directly concerned. In his anxiety to provide for the payment of all his debts. [767]*767lie liad willed that his negro man, Frank, should he sold, and also his horses and such cattle and all other articles as his wife did not wish to keep, hut the rest was to be his wife’s, unless the subsequent conditions should defeat or modify such devise. The one important question in this case, in regard to the construction of the will, is whether the language, “during her natural life,” shall he held to imply a limitation upon the right of his wife, Sarah Timmons, to dispose of any of the property by alienation. Such restriction, if held applicable to the farm, would necessarily apply to all of the property, both real and personal, and would prohibit her from disposing of more than a life interest in any of it. It is apparent there were certain things clearly intended by his will: First, that the testator wanted to have his debts paid by the sale of his negro man, and such horses and cattle and other articles as his wife did not care to keep. Next, that the horses and farm, with all its appurtenances, and all other articles, should he his wife’s, and at her disposal, and the negro woman, Rose, and her two children and increase, should he hers, and at her disposal, during her natural life, and that his mother and sister should he provided for, to a certain extent. The other provisions of ihe will may he examined to assist in determining what his intention was In the use of the term, “during her natural life,” for upon what that intention was this entire question depends. Had the will not been punctuated, there would be but little difficulty in determining that the term “during her natural life” only related to the disposal of the woman Rose and her children, with which it is most directly connected, as the principle laid down by Mr. Jarman in his Rule 18, (Jarm. Wills, p. 706,) that, “where the testator uses an additional word or phrase, he must he presumed to have an additional meaning,” may he well applied. The first list of articles, horses, farm, etc., had been declared to be his wife’s, and at her disposal; then Rose and her children should be hers, and at her disposal, during her natural life. The first unlimited use of the term “disposal,” followed by its second use. directly modified and limited by the words, “during her natural life,” would he a strong presumption of an intentional modification, and the comma separating- the clauses denoting the disposal would add to that presumption. When the form of the expression is varied in relation to Ihe different devises the presumption is that the intention of the testator is different.
Rut admitting that the limiting clause, “during her natural life,” may have been intended to refer to the term “disposal” in both cases, it is not considered that then it would necessarily imply an intention of the testator to deprive his wife of the power of disposing of any portion of ihe properly left lo her, except as a life interest. If the limitation was intended to he applied to the farm, it must he so applied to every article of personal property except that which she might give to Lydia A. Gres wood. The character and condition of his property after the sale of his negro man, Frank, and his horses, to pay debts, would not be such that in our view it can be properly presumed that it was the intention of the testator to compel his wife to retain and carry on the farm, support his mother and sister, and pay them [768]*768$100, and give a portion of the property to Lydia A. Greswood when she left, with no power to sell or dispose of anything except for her life. The onlv assistance she could have in this must be the one female slave with two small children. If such were the case, his liberality to his mother, sister, and Lydia Greswood, was far greater than to his wife, which we do not consider, from the relations shown to exist between them, could have been the case. We do not consider that the terms of the will and the surrounding circumstances would imply that it was the intention of the testator to compel a remainder by depriving his wife of everything except the power to procure a bare subsistence. In providing for “what might remain,” he expressed in ordinary terms what his desire was regarding what might remain not disposed of at her death. The fact that such a limitation upon her power to devise what was left to her as hers might or might not be held valid in law can have no more weight in determining his intention than would his lack of knowledge that his bequest to the missionary cause was invalid for uncertainty; and if it appears that his intention was to permit alienation, and not devise, the alienation could not be prohibited because his intended prohibition of her power to devise might be held to be invalid. Judging from the everyday-life of such a man as he has been shown to be, if he had intended only to.give his wife the use of his estate for life, it would appear to be much more natural and probable that he would have used that direct form of expression. It would also appear much more probable that in using the term, “whatever may remain,” he had reference to what she may not have consumed or disposed of at her death, rather than to the technical remainder after the life estate in what may have been disposed of by her. Any other construction would not, in our opinion, give sufficient force to the expression “shall be hers, and at her disposal.” In our view it is very improbable that the idea of a remainder after the disposal of a piece of property could have entered the mind of the testator, or that, had he intended that, regardless of his wife’s needs, the property should remain his estate, and be sold and appropriated to the missionary purposes, the equivocal term of “whatever may remain” would have been used. The law of Alabama makes a decision, in this view of the case, more easy, as it throws the burden of proof of anything less than a fee simple upon him who relies upon it. Section 1824 (2178) of the Code of Alabama, provides that “every estate in land is to be taken as a fee simple, although the words necessary to create an estate of inheritance are not used, unless it clearly appears that a less estate is intended.” And again, in section 1949: “Every devise of land must be considered to convey all the estate of the devisor therein, unless it clearly appears from the will that he intended to convey a less estate.” We do not consider that it clearly appears from this will that the testator intended to convey less than the whole estate, and it is unnecessary to examine further the laws and authorities cited upon this point.
But, if this construction of the will should possibly be incorrect, there still remains the defense of the statute of limitations. Section 2612 of the Code of Alabama provides that civil suits must be Commenced, after the cause of action has accrued, within the periods pre[769]*769scribed in that chapter; and section 2614 of the same chapter provides that actions for the recovery of lands, tenements, or hereditaments, or the possession thereof, should he commenced within 10 years. From this language the necessary conclusion is that the action must be commencd within 10 years after the cause of action has accrued. Section 2620 provides that when a right of entry on land accrues the entry must be considered as having been made, and the cause of action as having then accrued.
If, under the will, Sarah Timmons took but a life estate in the farm, but, presuming that she had a full title, conveyed the same to Waldrop by deed, he took as owner in fee and from her death held as such, and from that date the right of entry and the cause of action accrued as against him, and his possession, and the possession of all holding under him, must have been adverse to the heirs from that time; and the instruction that his possession could not be included to make up the 10 years we consider error. We also consider that the proposition contended for by the plaintiff in error, that adverse possession, being once shown, is presumed to continue until the contrary is shown, is well established to be the law of Alabama, (Abbett v. Page, 92 Ala. 571, 9 South. Rep. 332; Marston v. Rowe, 43 Ala. 271,) and it should have been so charged. It is ordered that the judgment of the court below be set aside, and the cause remanded for a new trial.