This case is submitted under Supreme Court rule 46 (178 Ala. xis, 65 South, vii), and the opinion of the court is delivered by
The bill of complaint is filed by J. K. Swoope, as executor of the several estates of Charles C. Swoope, a^.d his widow, Fannie R. Swoope, deceased. Its purpose is to bring said estates in chancery for administration and settlement, to sell the personal property for distribution, and to fix the status of certain real estate, whether belonging to the one estate or the other. This real estate is claimed by the appellant, Susie Swoope Bynum, as devisee under the will of her grandmother, said Fannie R. Swoope, and her demurrer to the bill of complaint presents the only question involved in this appeal.-
The status of this property is to be determined on the following allegations of the bill: Charles C. Swoope devised to his wife all of his estate of every description, for and during her life, to be used and enjoyed at her discretion, without liability to account to any one therefor, and with full power to sell and dispose of same, without liability to account to any one. The testator then makes a gift over of all of said estate, not disposed of by the testator’s said widow at her death, to the heirs of his body, share and share alike.
Mrs. Fannie Swoope purchased the real estate here in question, taking the deed in her own name, and caused the executor to pay the purchase price out of funds in his hands belonging to the estate — the proceeds of an insurance policy on the life of the testator. By the terms of Mrs. Swoope’s will this real estate is devised to the appellant, Susie Swoope Bynum, and the will recites that it is her separate estate, purchased with her own funds.
On the authority of Smith v. Cain, 187 Ala. 174, 65 South. 367, where the effect of such testamentary provisions was fully and carefully considered, we hold that under the allegations of the bill the investment of the money of the estate in this property, being a mere commutation as to form, for the use and benefit of the life tenant, did not destroy its equitable character as part of the corpus of the estate; and that, upon the death of Mrs. Swoope, the property passed by the residuary devise to the testator’s bodily heirs. Mrs. Swoope might have given this property to her intended beneficiary during her lifetime, but it is clear that she could not do so by the posthumous operation of a testamentary devise.
The demurrer was properly overruled, and the decree of the chancery court will be affirmed.
Affirmed.
ANDERSON, C. J., and MAYFIELD and THOMAS, JJ., concur.