Evins v. Cawthon , 132 Ala. 184 ( 1902 )

DOWDELL, J. —

-The bill as amended averred that the bank stock in question was part of the residuum of the estate. The will provides that the residuum shall be equally divided between the complainant and her sister, Florence Yaughan. It was the duty of the executors to make the division as directed by the will. The bill shows that all of the debts of the estate had been paid, and the special legacies mentioned in the will had been discharged. The number of shares of stock owned by the testatrix amounted to 104. The executors made an equal division of the same between the complainant and her sister Florence, delivering to each fifty-two shares, and for which new certificates were issued by the bank in their respective names and proper transfers duly made on the bank’s 'books. Under this state of facts, the executors were neither necessary nor proper parties, having no interest whatever in the suit. The fifty-two shares of stock thus held by the complainant were represented in one 'Certificate. Sbe bad sold, or contracted to sell, and it is immaterial which, five oí said shares to T. J. Rowell. It is plain that in order to carry out and consummate this sale, it became necessary to the transfer of the legal title to the five shares to Rowell and a delivery of the same that a certificate should issue to said Rowell and a transfer be made upon the books of the bank. And this required a surrender of the certificate representing the fifty-two shares and an issuance by the bank of other certificates. If the complainant owned the fifty-two1 shares in question, she undoubtedly had the right to sell any number of them, and upon the surrender of the certificate to have new certificates issued to her and her vendee, and it was the duty of the bank to issue new certificates upon her demand. She made the demand and the bank refused. This authorized her to come into equity to compel action on the part of the defendant bank. The bill prays that the bank be required to issue a new certificate to her vendee Rowell for the five shares 'sold to him, and that a new certificate be issued to her for the remaining forty-seven shares. The relief, therefore, sought by the bill is affirmative, and such as only could be had in a court of equity.—Cook on Stock and Stockholders (2nd ed.), 391; 23 Am. & Eng. Ency. Law, p. 664; Cushman v. Thayer Mfg. Co., 76 N. Y. 365. The enforcement of this right incidentally involved a construction of the will. As a general rule the executor is tlae proper party to ask for a judicial construction of a will, and a mere devisee, in the absence of a trust or some special equity may not apply for that purpose alone.—Lake View Mining & Mfg. Co. v. Hannon, 93 Ala. 88-9. In the present case the main purpose of the bill was the transfer of the stock, and the construction of the will is drawn into question in the consideration of complainants right to 'such transfer and to the issuance of certificates to effectuate the same and consummate the sale. The court having assumed jurisdiction for the purpose of compelling action on the part of the defendant bank, both the right and necessity for a construction of the will arose.

The controversy in this case grows out of that part of the will relating to the residuum of the estate. Item seven of the will is in the following language: “All the rest and residue of my estate, real, personal and mixed, of which I shall die seized and possessed, o.r to which I shall he entitled at my decease, I give, devise and bequeath to he equally divided between my said daughters, Lucy Oawtbon and Florence Vaughan.” The next item, eight, provides that if either daughter dies without surviving child, the surviving daughter ’shall “have all the property of every nature, kind and description that I have in this will given, devised and bequeathed to the deceased daughter and not by her expended.” From the language employed in these two items as above quoted, it is, we think, manifest that the testatiix intended that the bequest to the complainant should be accompanied with the right of enjoyment of the same, and if necessary to its enjoyment, the further right and power of expending a part or all of it. And whether construed apart or in connection with other provisions in the will, it requires no strained construction to reach this conclusion. Unless the words, “and not by her expended,” be- wholly meaningless, they are susceptible of no other construction than what they necessarily import, and that obviously, if not necessarily, implies the right and power to expend. The right to expend carries with it the right of disposition by sale. The further provision in item 8 to the effect, “It is my purpose to prevent my daughters from disposing of the property bequeathed them by me by will,” puts a limitation upon the disposition of [the property by the daughter, not by her expended, in a testamentary way by such daughter, and whether impliedly a limitation as to any other manner of disposition or not when construed in connection with -other provisions, is clearly not against the right of expending it. The' first consideration of the testatrix was to provide for her daughters, and this is manifest throughout her will -and was most natural, and she expresses her desire that they shall enjoy the property, and in which they might be defeated, if the construction contended for by the appellants -Should be given the will, and which is, that by tlie terms of tlie -will, tlie complainant and lier sister Florence Vaughan, have no power of disposition whatever of the property bequeathed. If such contention were adopted, it might be asked, if the bank stock in question paid no dividends, what enjoyment could the complainant derive from the bequest without the right of disposition under the will. We are clearly of the opinion that by the terms of the will, it was the purpose and Intention of the testatrix to give to the complainant Lucy Oawt'hon in the enjoyment of the bequest the right to expend all or any portion of the saíne, and to this end to make disposition by sale. What we have said, is all that the necessities of the case require, and it follows ithat the decree of the court below must be affirmed.