Grimball v. Patton , 70 Ala. 626 ( 1881 )

STONE, J.

The codicil is part of the'will, and they must be construed together as one instrument. If the codicil expressly revoke any part of the will, then the part revoked must be treated as stricken out. If any part or clause of the codicil be irreconcilably repugnant to a.clause or clauses of the will, then, to that extent, the codicil supplants the will, and the'latter becomes inoperative. But it supplants the will only to the extent the repugnancy is irreconcilable. This, on the principle, and only on the principle, that the codicil is the later expression of the testator’s will, and being variant from the provisions of the will, the presumption obtains that the testator’s purpose and will had undergone á changó.' It 'is said in many of the cases, that a codicil, duly executed, is a republication of the will, and draws to it the execution of the will, as of that date, with the exception of the rule of construction above noted. Hence, they are to be construed as one instrument — as collectively the last will of the testator.—Hitchcock's Heirs v. U. S. Bank, 7 Ala. 386, 437; 1 Jar. on Wills, 3 Amer. ed., marg. p. 160; 1 Redf. on Wills, 288-9. Says the author last cited : “It is a clear principle of the English and American law, that all codicils, however numerous, are to be regarded as parts of the will, and all, together with the will, are to be construed as one instrument.”—Ib. 352, and note 22 on page 291. Chancellor Kent’s language—Westcott v. Cady, 5 Johns. Ch. 343. — is: “ I shall take it for granted, as a clear and settled rule, that a will and codicil are to be taken and construed together, in connection with each other, as parts of one and the same instrument.” In Mason v. Smith, 49 Ala. 71, is a correct statement of the rules of interpretation. We need not announce whether the rules were correctly applied in that case.—Neff's Appeal, 48 Penn. St. 501; Simmons v. Simmons, 26 Barb. 68, 75.

In the 5th item of the will it is said: “ If any of my children should die before they arrive at the age of twenty-one years, leaving no legal issue, then the part of said child or children so deceased shall revert back to my surviving child or children and their heirs.” It is contended for appellees, that the true intent and meaning of this clause were, and are, that the surviving child or children should take, ho matter when any child should die, “leaving no issue.” The argument in support of this conclusion is, that the dying “ without issue ” must have been the controlling condition, on which testator intended the •gift over to take effect, and there could be no reason for the gift over, if the child died without issue before reaching the age of twenty-one years, that would not apply with equal force, if such child should so die after reaching that age. ’This argument asks us to imply the words “ or after f immediately succeeding the word “before,'' in the clause copied. We' can perceive no reason for such implication. If the intention •contended for had existed, it would have been much more easily and naturally carried out, by entirely omitting the words, ■“before they arrive at the age of twenty-one years.” This, on the solution we are asked to adopt, is the mode of expression most likely to suggest itself and be employed. Why mention the epoch of the children’s prospective majority, if it was to •exert no influence in the dispositions of his property? We can 'imagine cogent reasons, why a testator would wish to direct the secondary devolution of his property, in the event the primary objects of his bounty should be cutoff in immature years, while he may have desired, if they reached their majority, they themselves should determine the direction it should take. But we do not consider this line of conjecture .open to us. The testator has expressed one possible event, on the happening of which the property devised and bequeathed was to revert tó his estate, or other children. There were many'other possibilities, which should have suggested themselves, in the frame alike of the fifth item of his will, and of the codicil. "We have no right to suppose they did not occur to him. But, it is immaterial whether they occurred to him or not. If they did, then he intentionally omitted all provision to meet them. If they did not, then he had no testamentary intention in regard to them. Either view is fatal to the appellees ; for, in the construction ■of wills, we must carry into effect the intention of the testator, as shown in a fair interpretation of the language employed. We are forbidden to conjecture what he should have done, or what he would have done, if it had occurred to him.—Sherrod v. Sherrod, 38 Ala. 531; Hollingsworth v. Hollingsworth, 65 Ala. 321. Expressly directing that the property, in one -possible-event, should go to the other children, and omitting all direction in other possible events arising -under the fifth item -of the will and under the codicil, the implication is that this was intentional. Inelusio unius, est exolusio cdtermos.

Another argument: The first separable clause of the codicil is in this language: “ It is my will and desire, that the share of my estate, real, personal and mixed, or of any description whatsoever, which is intended for my daughters, shall vest in, and be held by my executors above mentioned, or the survivors, in trust for the sole and separate use and benefit of my said daughters respectively.” This clause is followed, and correctly followed, bv a semi-colon. If the codicil had stopped here, there ■could have been no differences of opinion in its construction. It would not have varied the qucmtxvm of the estate. Its only effect would have been to change a legal fee into a trust, or equitable 'estate in fee. No one would contend that this clause, standing alone, cut the interest the daughters took under the will down to a life-estate. The quantity of estate the daughters would have enjoyed, whether they married or not, would have remained a defeasible fee, secured to them under the 5th item of the will; nothing more, nothing, less. But the codicil continues: “ And should they, or either of them, marry, then said shares to be for their sole and separate use, free from the control or management of their husbands, and not in any manner to be liable for their debts — the net income only to be allowed by my said executors for the comfortable support and maintenance of my said daughters and their families. And on the death of my said daughter or daughters, leaving children, the share of each daughter to be equally divided -among her children.” This clause, in its entirety, is made to ■depend on the marriage of the daughter. “Should they, or ■.either of them, marry,” is its express condition. On the happening 'of the first named of these events — -marriage of the daughter — the use and enjoyment was cut down to the net income of the property. And, if it were .necessary, we would' probably hold, that the effect of the codicil was; to limit contingently the power of the daughters to charge anything more than the net income of their respective shares. This, because testator intended, if his daughters married and left phildren, their estates should be cut down to a life-tenancy, and the corpus of the devise and bequest should be preserved for such children. But he made no provision for any other contingency. The use and enjoyment were limited by the codicil, because the-daughter married. The fee was not. defeated, or cut down, because she left neither child or children.

The case of Doe, ex dem. v. Marchant, 6 Man & Gr. 813, is-a strong authority in support of the views expressed above. The opinion of the court was rendered by Tindal, C. J., ánd' will be understood from the syllabus of the case, as follows: “A. devises the remainder in fee in all her lands (upon certain events 'which had taken place) to B., in.clear and unambiguous terms.. By a codicil which A. directed to be annexed to, and taken- as part of her will, after reciting that she had become possessed of certiin freehold property since, the date of her will, she gave to [trustees for] B. an estate for life in her freehold property, ‘ instead of the devise and bequest contained in the will,’ with-remainder to such child or children as should be living at the time of B.’s decease, in fee; or, if none such, then with remainders to the brothers and sisters of B. (with thp exception of one brother by name) who should be living at the time of her decease, in fee; but the codicil did not go on to dispose-of the ultimate fee, in case the intermediate remainders- should, as they eventually did, fail to take effect: Held, that the limitation of the remainder in fee to B. by the will, must still be considered' as a subsisting limitation, as being .a-disposition thereof in the will unaltered by any substitution in the codicil.” The case of Robertson v. Powell, 2 Hurlst. & C. 762, opinion by Pollock, O. B., is to the same effect. Now, the facts of those well considered cases furnish a much stronger argument in favor of an entire change and substitution of testamentary intent, than do the facts of the case in hand.- Yet, because the codicil failed to dispose of the ultimate fee, it was held that it must be controlled by the unsupplanted clause in the will.-Larrabee v. Larrabee, 28 Vt. 274; 3 Ohio St. 369.

We hold, that the will of Dr. Moore gav© an absolute title-to each legatee, and the codicil had no' other -effect than to qualify the daughter’s right of enjoyment- during life, with a limitation over, contingent on their leaving children at their death. Neither that contingency, nor the one provided; for in the fifth item of the will, having. happened, Mrs. Grimball at her death owned the absolute equitable fee in her lands and the entire beneficial interest in the personalty. She died intestate,, a married woman, over the age of twenty-one years, childless, a resident of the State of New York, and leaving her husband surviving her. She owned both personal and real estate, the-latter being in the State of Alabama. Her death terminated the functions of the trustee, appointed and deriving his authority under the codicil; and her lands became a legal fee in those entitled to the inheritance, and her personal estate was alike dissolved of the' testamentary trust.—Comby v. McMichael, 19 Ala. 747; Powell v. Glenn, 21 Ala. 458; Schaffer v. Lavretta, 57 Ala. 14. The descent of the real estate is regulated by the laws of Alabama.

The bill avers that’ the lands of which Mrs. Grimball died, seized; ” belong to said trust■ estate; ” that is, the trust created by the will of Dr. David Moore. We understand this to bean averment, that all. the lands owned by Mrs. Grimball at the-time of her death, accrued to her under the will of her father. These lands, by the terms of the codicil, were placed in trust “ for the sole and separate use and benefit of. my [testator’s], said daughters respectively; and should they, or either of them, marry, then said shares to be for their sole and separate use, free from the control or management of their husbands, and not in any manner to be liable for their debts — the net income only to be allowed by my said executors for the comfortable support and maintenance of my said 'daughters and their families.” ' These are clear, unmistakable words of exclusion of the marital rights under all our rulings, and constitute an equitable-separate'estate.—Short v. Battle, 52 Ala. 456, and citations.

Lands' or other property thus held are not governed, or in any way affected, by any of our statutes securing to married women their separate estates, nor by, any statutory law relating-to separate estates.—Pickens v. Oliver, 29 Ala. 528; Cowles v. Morgan, 34 Ala. 535; Reel v. Overall, 39 Ala. 138; Short v. Battle, sufra.

Being an equitable separate estate, there are two reasons why Mr. Grimball, surviving husband, takes no estate or interest whatever in lier real estate thus situated. First: He is not-tenant by the curtesy, for there was no issue of the marriage,, born alive.-Bibb v. McKinley, 9 Por. 636.; Bishop v. Blair, 36 Ala. 80; Cheek v. Waldrum, 25 Ala. 152; Rochon v. Lecatt, 1 Stewart, 590. Second: His marital rights never having attached 'to this property during Mrs. Grimball’s life, by reason of the words of. exclusion- in Dr. Moore’s will, they can not,, under our rulings, attach after her death.—Randall v. Shrader, 20 Ala. 338; Mayfield v. Clifton, 3 Stew. 375; Bibb v. McKinley, 9 Por. 636; Andrews v. Jones, 10 Ala. 400, 422; Welch v. Welch, 14 Ala. 76, 83; Vanderveer v. Alston, 16 Ala. 494; Lockhart v. Cameron, 29 Ala. 355, 363; Steward v. Stewart, 31 Ala. 207, 216; Bradford v. Howell, 42 Ala. 422. The lands belong to the heirs at law, brothers and sister of Mrs. Grimball, as tenants in common; subject, of course, to the right of her personal representative to subject them to her debts, should her personal estate prove insufficient.—Calhoun v. Fletcher, 63 Ala. 574, and authorities cited.

There being an administrator of Mrs. Grimball’s estate rightly appointed in this State, the personal assets within this State must, in the first instance, be paid to him. The law, in its own policy, and for wise and necessary purposes, devolves the legal title on him, and he alone can maintain suits to reduce the personal assets and dioses in action to possession. He is entitled to them, first, for payment of debts in this State, if there be any, and for the payment of the expenses of administration. Second, he is entitled to them for the purpose of ulterior administration. — Ex parte Grimball, 61 Ala. 598; Welch v. Welch, 14 Ala. 76 ; Gardner v. Gantt, 19 Ala. 666 ; Lockhart v. Cameron, 29 Ala. 355; Broughton v. Bradley, 34 Ala. 694; Fretwell v. McLemore, 52 Ala. 124. There are exceptional cases, in which chancery has decreed distribution without local administration ; but the averments in this record do not bring this case within that rule. — See the authorities collected in Fretwell v. McLemore, supra. It results, that Cruse, the trustee, must account to, and settle with Rison, the administrator, for all the personal assets that belong to the trust, including the land rents, which accrued before the death of Mrs. Grimball. The real estate which came'to Mrs. Grimball under the will of her father, together with the rents which have accrued since her death, is the property of her brothers and sister, unless needed in whole or in part, and claimed by the administrator, for the payment of debts.—Calhoun v. Fletcher, 63 Ala. 574.

We are asked, in the present case, to go beyond what is above declared, and to determine to whom the residuum of the personal property will go, after the payment of debts and expenses of administration. We do not understand the trustee’s bill as raising this question, nor can we perceive that he has any interest in its solution. His bill was filed for instructions in the administration of the trust, and for an authoritative determination of the persons to whom he must account, and with whom he must settle. His duty and interest extend no farther. We have answered these requests, and have determined all the •questions in which he can have any interest. The cross-bill of Mr. Grimball, however, asserts that he, as surviving husband, is ventitled to the personal estate of which Mrs. Grimball died the owner. This question can not arise in Cruse’s settlement of the trust, and can only be considered when Bison, the administrator, comes to close his administration. There is nothing in the record which shows that his administration is ready for settlement. The very opposite is shown, for the administrator has not obtained possession of any of the assets. The cross-bill 'was prematurely filed, because, in any event, it failed to show any present right to relief. N either is the cross-bill germane to the purposes of the original bill, which, as we have-seen, lpoks alone to the administration and settlement by Cruse of the trust estate in his hands. There is nothing in the frame-of the present suit which will authorize Bison to settle his administration therein. The purpose and prayer of the cross-bill can only become material, when Bison settles his administration ; and hence we say, the relief prayed in the cross-bill is not germane to the scope and purpose of the original bill.

On the assignments of error by Grimball, the decree of the chancellor, dismissing his petition, and disallowing all claims attempted to be set up in the cross-bill, is affirmed. On the assignments of error by Bison, and by the heirs at law of Mrs. Grimball, the decree of the chancellor is reversed, and a decree here rendered, in accordance with the views above expressed. Let the costs of appeal in. this court, and in the court below, be paid equally by appellant, Grimball, and by Cruse out of the trust fund.

Beiokell, O. J., not sitting.