PER CURIAM.
The case is tried upon an agreed statement of fact, with all the parties at interest before the court. The words “and owned,” after the words “to be held,” in the second paragraph of the will, are stricken by the amended pleading of the guardian of Lizzie Louise Watkins, a non compos mentis. The exhibits to the agreed statement of fact contain said words. However, this variance between the pleading and proof is immaterial. It is necessary that a sale of the properties be ordered to discharge the contract and receivership liens and to effectuate a division among joint owners.
It is the opinion of the court that it was the intention of testatrix to exclude Carter Spottswood Crute from participation in either the temporary status or period of joint tenancy, or in the ultimate ownership or increment therefrom of Mrs. Watkins’ properties, real or personal. The temporary joint tenancy was provided for and given the children named for the period and survivorship indicated, and that there was specific devise and bequest of the title and fee to the several persons named — Mrs. Ora Lee Lord, Irene Scruggs Stannard, Birdie Crute, Lizzie Louise Watkins, Lucy Cabaniss Watkins, Sadie Mae Miller, and W. M. Watkins, ■ — described by testatrix as “my said six daughters and
only
son.” The repetition of the expression “daughter's and only son,” and the provision for surviving
sisters
and
brother
as to the temporary enjoyment and use, and the fact that no provision was made for Carter Spottswood Crute, as was made for the parties named, indicates the intention to disinherit said Carter Spottswood Crute, and to invest the children named with the temporary joint tenancy or estate for years, and to vest in them the. fee or title to all of testator’s property.
The foregoing is the result of the expressed intention of testatrix in her effort to provide (during the time and circumstances indicated) “a home and support” for the seven children named, and after the expiration of said joint occupancy and enjoyment that an equal division of the properties she classed as real and personal property as indicated be made among the named children, or in the event of one’s death to devisees, legatees, or next of kin under the statutes of descent and distribution. Such is the result of the use of words by testatrix, -having the effect of a limitation of the period of common or joint use, occupation, and maintenance; such words as “till all of them marry or die,” “final division,” “final settlement,” “the death of either,” and “surviving sisters and brother.” That is to say, testatrix held her properties together until the termination of the declared period,
faot, or ow'oumstanoes
for joint use and enjoyment, when the indicated and designated “final division” and “final settlement” should then be had, viz. “to be held and owned by my said six daughters, and only son W. M. Watkins, jointly, share and share alike, till all of them marry, or die.” It is the opinion of the court that the succeeding clause, for death with or without issue before final division, etc., operated upon the enjoyment of the “home and support” for the period or state — “till all of them marry or die.”
Under the agreed statement of facts, and construction given the will, Lizzie Louise Watkins is a married woman under the will, taking from her and Sadie Mae Miller, a married woman (as the only living of said named legatees and devisees) the right of common enjoyment, but not the right of share in final division of the estate vested in them and their brother and sisters named. The period for a “final division” and “final settlement” being at hand according to the terms of the will, it should be made in equity, administering the estate, effectuating partition or division of said properties of testatrix according to the statutes and under the rules provided for such matters in a court of equity.
It follows that testatrix did not die intestate as to any class of her properties, but that the same vested in the named children, to be divided when all of them “marry or die.” All «having died who are not married, and the period of division or final settlement being present, it should be further said by way of construction that (1) the several articles of personal property designated in the will be delivered to the respective daughters indicated, or, as to those being dead, to their legatees or next of kin under the statute; (2) that the articles of personal property embraced in the expression “balance of house-' hold articles,” and not consumed or destroyed
in the common use or occupancy, be divided among the two living daughters and the several legatees or next of kin of the daughters and son who are d'ead; (8) that the drug store, depleted stock of drugs, and old fixtures passed under the second item of the will, to the several children named, and the additions thereto and betterments in the nature of additional stock, new fixtures, and the lot purchased from the income of the drug business, are, in equity; treated under the will as owned by testatrix, and may be claimed and distributed accordingly;
(4)
this increment from the joint estate may have been consumed and dissipated entirely by those having the common use thereof.
The fact that a large portion was added, by way of individual effort of the son and daughters remaining at home, to the corpus of Mrs. Watkins’ estate by way of additional stock, fixtures, and the lot purchased by Wm. M. Watkins in his representative capacity, will, when claimed by said parties in interest, acquit the executors and administrators of said several joint owners of any such charges as rent or interest, etc. The fact that the doings of one or more of these children with and for the common fund, and during the period of a joint ownership, has been reported to the probate court, and decree entered therein, will not, in equity, subject to liability such joint owner or his oilier interest in the corpus of the estate. This is the justice and law of the case, since such joint owners at will may have consumed and wasted said earnings, rather than saved the same and added it ,to the corpus of the estate, as was done by said brother and sisters.
It follows that any valid conveyances, or lien creating and attaching by virtue of contract, estoppel by said named daughters or son not under disability, or by the order of court and as an election of the court, for the non'compos mentis, may now be set up and enforced, the time of a final division of the estate having arrived. The just observation is contained in the final decree that it appears from the evidence and the agreed statement of facts that the money loaned by the defendant Bertha Patterson to Wm. M. Watkins, Irene Crute Stannard, and Birdie Crute was used in the construction of a bungalow on the Randolph street property, known as the residence property, and that “the use of this money hq^ enhanced the value of said property to the amount of $10,000, and she, the said Bertha Patterson,” in equity (1) “is entitled to a
Men on said property
to secure her for the repayment of the balance due her for the money so loaned by her on her said mortgage”; that (2) she also has a claim “against the shares of the property” of the several mortgagors in the other properties of the estate of Mrs. Sallie S. Watkins which is now undisposed of, and also a lien under the mortgage in the share or interest of said Wm. M. Watkins, Irene Crute Stannard, and Birdie Crute, in the lot purchased by Wm. M.
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PER CURIAM.
The case is tried upon an agreed statement of fact, with all the parties at interest before the court. The words “and owned,” after the words “to be held,” in the second paragraph of the will, are stricken by the amended pleading of the guardian of Lizzie Louise Watkins, a non compos mentis. The exhibits to the agreed statement of fact contain said words. However, this variance between the pleading and proof is immaterial. It is necessary that a sale of the properties be ordered to discharge the contract and receivership liens and to effectuate a division among joint owners.
It is the opinion of the court that it was the intention of testatrix to exclude Carter Spottswood Crute from participation in either the temporary status or period of joint tenancy, or in the ultimate ownership or increment therefrom of Mrs. Watkins’ properties, real or personal. The temporary joint tenancy was provided for and given the children named for the period and survivorship indicated, and that there was specific devise and bequest of the title and fee to the several persons named — Mrs. Ora Lee Lord, Irene Scruggs Stannard, Birdie Crute, Lizzie Louise Watkins, Lucy Cabaniss Watkins, Sadie Mae Miller, and W. M. Watkins, ■ — described by testatrix as “my said six daughters and
only
son.” The repetition of the expression “daughter's and only son,” and the provision for surviving
sisters
and
brother
as to the temporary enjoyment and use, and the fact that no provision was made for Carter Spottswood Crute, as was made for the parties named, indicates the intention to disinherit said Carter Spottswood Crute, and to invest the children named with the temporary joint tenancy or estate for years, and to vest in them the. fee or title to all of testator’s property.
The foregoing is the result of the expressed intention of testatrix in her effort to provide (during the time and circumstances indicated) “a home and support” for the seven children named, and after the expiration of said joint occupancy and enjoyment that an equal division of the properties she classed as real and personal property as indicated be made among the named children, or in the event of one’s death to devisees, legatees, or next of kin under the statutes of descent and distribution. Such is the result of the use of words by testatrix, -having the effect of a limitation of the period of common or joint use, occupation, and maintenance; such words as “till all of them marry or die,” “final division,” “final settlement,” “the death of either,” and “surviving sisters and brother.” That is to say, testatrix held her properties together until the termination of the declared period,
faot, or ow'oumstanoes
for joint use and enjoyment, when the indicated and designated “final division” and “final settlement” should then be had, viz. “to be held and owned by my said six daughters, and only son W. M. Watkins, jointly, share and share alike, till all of them marry, or die.” It is the opinion of the court that the succeeding clause, for death with or without issue before final division, etc., operated upon the enjoyment of the “home and support” for the period or state — “till all of them marry or die.”
Under the agreed statement of facts, and construction given the will, Lizzie Louise Watkins is a married woman under the will, taking from her and Sadie Mae Miller, a married woman (as the only living of said named legatees and devisees) the right of common enjoyment, but not the right of share in final division of the estate vested in them and their brother and sisters named. The period for a “final division” and “final settlement” being at hand according to the terms of the will, it should be made in equity, administering the estate, effectuating partition or division of said properties of testatrix according to the statutes and under the rules provided for such matters in a court of equity.
It follows that testatrix did not die intestate as to any class of her properties, but that the same vested in the named children, to be divided when all of them “marry or die.” All «having died who are not married, and the period of division or final settlement being present, it should be further said by way of construction that (1) the several articles of personal property designated in the will be delivered to the respective daughters indicated, or, as to those being dead, to their legatees or next of kin under the statute; (2) that the articles of personal property embraced in the expression “balance of house-' hold articles,” and not consumed or destroyed
in the common use or occupancy, be divided among the two living daughters and the several legatees or next of kin of the daughters and son who are d'ead; (8) that the drug store, depleted stock of drugs, and old fixtures passed under the second item of the will, to the several children named, and the additions thereto and betterments in the nature of additional stock, new fixtures, and the lot purchased from the income of the drug business, are, in equity; treated under the will as owned by testatrix, and may be claimed and distributed accordingly;
(4)
this increment from the joint estate may have been consumed and dissipated entirely by those having the common use thereof.
The fact that a large portion was added, by way of individual effort of the son and daughters remaining at home, to the corpus of Mrs. Watkins’ estate by way of additional stock, fixtures, and the lot purchased by Wm. M. Watkins in his representative capacity, will, when claimed by said parties in interest, acquit the executors and administrators of said several joint owners of any such charges as rent or interest, etc. The fact that the doings of one or more of these children with and for the common fund, and during the period of a joint ownership, has been reported to the probate court, and decree entered therein, will not, in equity, subject to liability such joint owner or his oilier interest in the corpus of the estate. This is the justice and law of the case, since such joint owners at will may have consumed and wasted said earnings, rather than saved the same and added it ,to the corpus of the estate, as was done by said brother and sisters.
It follows that any valid conveyances, or lien creating and attaching by virtue of contract, estoppel by said named daughters or son not under disability, or by the order of court and as an election of the court, for the non'compos mentis, may now be set up and enforced, the time of a final division of the estate having arrived. The just observation is contained in the final decree that it appears from the evidence and the agreed statement of facts that the money loaned by the defendant Bertha Patterson to Wm. M. Watkins, Irene Crute Stannard, and Birdie Crute was used in the construction of a bungalow on the Randolph street property, known as the residence property, and that “the use of this money hq^ enhanced the value of said property to the amount of $10,000, and she, the said Bertha Patterson,” in equity (1) “is entitled to a
Men on said property
to secure her for the repayment of the balance due her for the money so loaned by her on her said mortgage”; that (2) she also has a claim “against the shares of the property” of the several mortgagors in the other properties of the estate of Mrs. Sallie S. Watkins which is now undisposed of, and also a lien under the mortgage in the share or interest of said Wm. M. Watkins, Irene Crute Stannard, and Birdie Crute, in the lot purchased by Wm. M. Watkins, and conveyance to him in a representative capacity. The last-named lot was purchased by Watkins and paid for by check on the Rison Banking Company, and is subject to the provisions of. the will and the mortgage as indicated. And the said cotenants who are mortgagors, and those representing them in the respective estates, have the right of contribution from the other cotenants to the extent of the lawful charges and enhanced value to the common properties under equitable principles (Freeman on Cot. & P. [2d Ed.] p. 411 et seq.) and our statutes for partition (Code, §§ 9303, 9334) and constructions thereof by this court. Stokes v. Stokes, 212 Ala. 190, 101 So. 885; Clark v. Whitfield, 213 Ala. 441, 105 So. 200; Phillips v. Smith, 214 Ala. 382, 107 So. 841; Thomas v. Skeggs, 213 Ala. 159, 104 So. 395; Sandlin v. Anders, 210 Ala. 396, 98 So. 299.
It is the duty of a court of equity to see to it that the rights of the non compos mentis have been and are asserted and protected in the premises and under the respective changed conditions of estate, and for that purpose the guardian is under the control of the court, and subject to orders, directions, and elections by the court for such ward, which are effective and binding as touching her interest or estate (McCalley v. Finney, 198 Ala. 462, 73 So. 639; Austin et al. v. Bean, Executor, 101 Ala. 133, 16 So. 41), such orders as may be right in the premises and just to her joint owners, who have honestly acted for the common benefit and the improvement of the corpus of the estate and its real properties.
It should be stated that all of the joint owners who participated or acquiesced in the tearing down of the old dwelling and the building of the new houses, and parties before the court eventuating into receivership, are bound by that action and proceeding, and the court was and is now authorized to elect for the insane party or ward, as is just and according to equitable principles and our statutes, and to make all necessary orders in matters pursuant to a final division of the joint properties among the owners thereof, and to adjust and determine all claims and equities of the several cotenants, and incumbrancers and lienholders, without unnecessary delay, expense, and litigation.
The rehearing is granted to the extent of modifying the opinion rendered.on the original hearing and substituting the foregoing construction of the will therefor. The decree of the circuit court is not in full accord with the foregoing construction of the will, and we adhere to the judgment of reversal and remandment of the cause as now rested on the appeal of Mrs. Miller.
Reversed and remanded upon the direct appeal of Mrs. Miller, and the costs of ap
peal are taxed against John C. Stannard, as executor of tile estate of Birdie Crute, deceased, and Young Wall, as guardian of Lizzie L. Watkins, non compos mentis.
ANDERSON, C. J., and SAYRE, SOMERVILLE, GARDNER, BOULDIN, and BROWN, JJ., concur.
THOMAS, J., concurs in the result, and dissents as to the construction given the will.