Section 43-8-224, Ala. Code 1975, Alabama's Antilapse Statute


Norwood v. Barclay, [Ms. 1180281, Oct. 18, 2019] __ So. 3d __ (Ala. 2019). The Court (Stewart, J., and Parker, C.J., and Wise, Sellers, and Mitchell, JJ., concur) reverses an order of the Jefferson Probate Court construing a will so that the testator's estate would pass by intestacy and escheat to the State of Alabama pursuant to § 43-8-44, Ala. Code 1975 ("If there is no taker under the provisions of this article, the intestate estate passes to the State of Alabama"). The Court instead holds that § 43-8-224, Ala. Code 1975 (the antilapse statute) requires construction of the will in such a way that the estate passes to the two surviving heirs of the person originally designated by the will to receive the entirety of the estate who predeceased the testator. The Court reasons that this result is compelled by § 43-8-222, Ala. Code 1975, which provides that "[t]he intention of a testator as expressed in his will controls the legal effect of his dispositions. The rules of construction expressed in the succeeding sections of this article apply unless a contrary intention is indicated by the will."

Reasoning from several settled rules of construction ("[w]e 'presume that, when a testator undertakes to make a will of all his property, he did not intend to die intestate as to any of it or during any period of time' " "Every doubt in a will must be resolved in favor of a testator's heirs at law" "[i]t is a well-settled principle that the law does not favor escheat" and "any doubt whether property is subject is escheat is resolved against the state") (Ms. **8-9), the Court concludes "[i]f the testator wanted to prevent the nieces from inheriting her estate, she could have included language in her will preventing the application of the antilapse statute. The testator gave no indication in her will that the antilapse statute should not apply." Ms. **11-12. Accordingly, applying the settled rules of construction, the Court holds the antilapse statute applicable and directs that the nieces of the sole devisee who predeceased the testator were entitled to take the devisee's share of the testator's estate.

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