Girard v. Futterer , 83 Ala. 234 ( 1887 )

SOMEEYILLE, J.

— The suit is one brought by the complainants as legatees under the last will and testament of Stephen Spuller, deceased, which was duly admitted to probate, in the county of Mobile, in September, 1864. The effort is to make these legacies, or rather so much of them as remains unpaid, a charge on certain real estate described in the bill. The wife of the testator was appointed the executrix of the will, and was also made a legatee under its provisions ; but, at the time of the filing of the bill, she was deceased, having then herself disposed of the property in controversy by will.

It was provided in a codicil of Stephen Spuller’s will, that these legacies “shall not be payable, in case that, by reason of the existing war, or other circumstances, my said wife, Julia Spuller, shall not deem it discreet to pay the same, in view of the wants and requirements of herself and family; hereby intending to make the payment of said legacies, or any part thereof, entirely subject to the sound discretion of my said wife.”

A demurrer was interposed to the bill, assigning among other grounds, that no recovery could be had by the complainants, because the will made the payment of the legacies, in whole or in part, purely discretionary with the executrix, and she had elected not to pay them except in part. Though somewhat inclined at first to concur in the view taken by the chancellor, who overruled this, and the other assignments of demurrer, we are of opinion, after further consideration, that this particular ground should have been sustained. We have here the reposing of a discretion, which involves the idea of one acting according to his own judgment and conscience, entirely free from the controlling dictation of the judgment or conscience of any other person. — Judges of Oneida v. People, 18 Wend. (N. Y.) 99. It may be. contended, that the discretion of the executrix was intended to be limited, in its exercise, by “ the wants and requirements of herself and family,” and, as she is deceased, and she left no family, this would be persuasive to show that the property remaining undisposed of for this purpose, at the time of her decease, would be chargeable to satisfy the unpaid portion of the legacies in question. There seem to be two satisfactory answers to this view. In the first place, the executrix was necessarily the sole judge of the wants and requirements of herself and family, the testator having failed to announce any rule by which they should be limited; and, in the absence of any absolute promise on her part electing to pay the legacies, especially when accompanied by her disposition of the.remainder of the property by her last will to others than the complainants, it seems plain to us that the executrix considered, whether rightly or not, it is entirely immaterial, that the retention of this property was required for the comfort of herself and family, This decision on her part, even in this aspect of the case, is but the exercise of a discretion of judgment, and is not revisable. In the second place, the •concluding clause of that portion of the codicil above quoted, which*, being last, must be the prevailing expression of the testator’s intention, leaves no doubt as to the correctness of this construction. This clause reads as follows — “ hereby intending to make the payment of said legacies, or any part thereof, entirely subject to the sound discretion of my said- wife.” Here we find a final declaration of the testator’s intention, in words perfectly free from all ambiguity of meaning. The will being a law to the court, it is not competent, by judicial interference, to control the exercise of this discretion. The court erred in not sustaining the second ground of demurrer, and for this reason we reverse the decree, and, proceeding to render the judgment which the chancellor should have rendered, we adjudge that the second ground of demurrer assigned to the bill is well taken, and that it be sustained. The bill will accordingly be dismissed, unless tlie complainant, within forty days from the rendition of this judgment, shall obtain permission to amend his bill, if possible, in such manner as to give equity to it.

We do not consider it necessary to decide the other questions raised.

Beversed and rendered.