Ralls v. Johnson , 200 Ala. 178 ( 1917 )

The will of Thomas L. Johnson, deceased, is by this appeal presented for construction. The reporter will set it out in the statement of facts.

The testator was twice married. By his first wife he had four children, a son, Mentor B. Johnson, and three daughters, Q. Johnson and V. Johnson and Mrs. A. W. Ralls. The latter was living with her husband, Dr. A. W. Ralls, who amply maintained her. The said Mentor B. Johnson and his two unmarried sisters lived in testator's home on Ninth street, in the city of Gadsden, when the will was made, and at the death of testator; while complainant and her two minor children, Thomas L., Jr., who was only five years of age, and Sterling, who was only eleven months of age, lived with testator at their home in East Gadsden at that time. The two separate homes had been maintained for the reason that there were two families, the two separate sets of children of the testator. The children of the first wife were of age, and to each of them testator had given such education as he saw fit. Testator sought to define the interests which his wife and her two children should take in his estate, and to make provisions for them as he saw proper. The widow must take under the will, or renounce its provision and take under the statute. Such was substantially the relative situation or status of the testator, and of each of his two families, at the time he made the will in question.

The application of common sense in the interpretation of wills has evolved certain cardinal rules of construction. The testator's intention, if legal, is the law of the instrument. Wolffe v. Loeb, 98 Ala. 426, 13 So. 744; Wynne v. Walthall,37 Ala. 37; 1 Schouler on Wills (5th Ed.) § 466. This intent must be gathered from the whole will, when all the parts are construed in relation to each other, "taking due consideration of the testator's scheme manifested by the will itself, so as, if possible, to form one consistent whole." Myrick v. Williamson, 190 Ala. 485, 67 So. 273; Montgomery et al. v. Wilson et al., 189 Ala. 209, 66 So. 503; Smith v. Smith,157 Ala. 79, 47 So. 220; Holt v. Hermann, 185 Ala. 257,04 So. 431.

In the case of an apparent repugnancy, the general intent of the testator, as declared by the will, must be preferred to the special intent (Miller v. Flournoy's Heirs, 26 Ala. 724; Nightingale v. Shelden, 5 Mason, 336; 1 Schouler on Wills, § 466); and we cannot incorporate provisions not expressed in the will, unless the will itself clearly shows such to have been the testator's intention (Hollingsworth v. Hollingsworth,65 Ala. 321). The residuary clause therein is in legal effect the last clause of the will, notwithstanding its position. 40 Cyc. 1413, and authorities. However, to effectuate the intention of the testator a general residuary clause will be made to yield to a specific inconsistent provision, especially if the latter be subsequent in recital. Rogers v. Rogers,49 N.J. Eq. 98, 23 A. 125; Board v. Stead, 259 Ill. 194,102 N.E. 173; Markle's Estate, 187 Pa. St. 639, 41 A. 304; Radfield on Wills, 446; 1 Schouler on Wills, § 474; 2 Jarm. on Wills (R. T.'s Ed.) 44.

In this state the rule has been long declared that apparently conflicting clauses must, if possible, be so reconciled as to make each operative, and that in case of irreconcilable repugnancy the latter clause must prevail over the former, as being the last expression of the testator's will. Thrasher v. Ingram, 32 Ala. 645; Denson v. Mitchell, 26 Ala. 360; Gibson v. Land, 27 Ala. 117. But it is equally well settled that the rule that the latter clause must prevail over the former in case of irreconcilable repugnancy is never applied except on the failure of every such attempt to give the whole will such construction as will render every part effective. Walker's Gdn. v. Walker, 17 Ala. 396; Griffin v. Pringle, 56 Ala. 486; Rogers v. Rogers, supra.

It results, therefore, that where an estate or interest is given in one clause of a will in clear and decisive terms, the interest so given cannot be taken away or diminished "by raising a doubt upon the extent and meaning of a subsequent clause, nor by inference therefrom, nor by any subsequent words that are not as clear and decisive as the words of the clause giving the interest or estate." Duncan v. De Yampert, 182 Ala. 528,62 So. 673; Bruce v. Bissell, 119 Ind. 525, 22 N.E. 4, 12 Am. St. Rep. 436; Pitts v. Campbell, 173 Ala. 604, 55 So. 500; 1 Underhill on Wills, § 358; 30 Am. Eng. Ency. Law, 688; 1 Schouler on Wills, §§ 466, 468, 474. Lord Campbell's statement of the maxim is:

"If there be a clear gift, it is not to be cut down by anything subsequent which does not, with reasonable certainty, indicate the intention of the testator to cut it down, but the maxim cannot mean that you are to institute a comparison between the two classes as to lucidity." Randfield v. Randfield, 8 House of Lords Cas. 224, 235.

It is insisted by appellants that the first three paragraphs of the will disposed of the entire estate of Thomas L. Johnson and fixed the interest of each devisee or legatee. By the first paragraph the executor is directed to pay testator's just debts; and by the second paragraph there is carved out of the estate so remaining the sum of $10,000 for testator's son Mentor B. Johnson, and also all life insurance policies, payable to the testator, on the life of said son. The third paragraph devises and bequeaths to his wife, Lillie S. Johnson, and his children, Mentor B. Johnson, Q. Johnson, V. Johnson, Mrs. Lola Ralls, Thomas L. Johnson, Jr., and Sterling Johnson, equally, share and share alike, "all the residue and rest of my estate, real, personal and mixed, of which I shall die seised and possessed, and to which I may be entitled at my decease."

If, therefore, the provisions of item 3 are limited by the subsequent provisions of the will, this intention of the testator must be clearly and explicitly shown; that is to say, the subsequent provisions of the will must indicate with reasonable certainty the intention of the testator to cut down the estate disposed of in item 3 as "the rest and residue" of his estate.

Though paragraph 3 directed an equal distribution of the "residue" of the estate, yet it is equally clear from the subsequent provisions of the will that it was testator's intention to impose a trust on this residue of his estate for maintenance and support (item six), and to subject his two homes to a limited use or estate as specifically declared in items 4 and 5 of the will; that is to say, to provide for the payment annually, by his personal representative, of a sum sufficient for the necessary support and maintenance of the several dependent members of his family indicated, and to provide an additional sum for the proper education of the two minors named, and also to provide a home for his two families for the time indicated. No discretionary power to fix this necessary maintenance, to say what would constitute the suitable education of his minor children, or to determine as to the occupancy of the two homes, was left to his executor. Nor did testator leave it to the discretion of his executor to pay any sum he might see fit for maintenance and education, but provided that the same must be necessary and sufficient. Thus regard for the condition and station in life of testator and of those for whom he was providing must be had.

The chancellor was correct in his interpretation of item 6 that it was the intention of the testator to give to his widow and his two minor children and his two unmarried daughters, to be paid each year, a sum sufficient for their maintenance and support, and that the amounts so to be expended were not intended to be treated as advancements and charged to the distributive share or shares of the widow, said two minor children, and said two unmarried daughters. The "said" wife and children for whom maintenance and support was provided in item 6 were named in the two immediately preceding sections of the will, where provision was made that they should retain "rent free" the respective homes.

The will directed the annual payment of the maintenance provided for the wife and her two minor children by testator. Since the testator did not direct that such payments should be made from any particular fund, or specified distributive share, it is clear that these maintenance payments were intended to be made from the corpus of the estate, and that the corpus was impressed with this trust. Sistrunk v. Ware, 69 Ala. 273; Coleman v. Camp, 36 Ala. 159. This provision for the support of the widow and her children and for the education of these children was an additional legacy to them to that given in item 3 of the will.

The interest devised in paragraphs 4 and 5 was an estate to be terminated upon the happening of the contingency respectively indicated in each item. The case of Scruggs v. Yancey, 188 Ala. 682, 66 So. 23, supports this contention. Stein v. Gordon, 92 Ala. 532, 9 So. 741; Guesnard v. Guesnard, 173 Ala. 258, 55 So. 524; 1 Jarm. on Wills (6th Ed.) *741, 759. A devise of the "free use" (Cook v. Gerrard, 1 Saund. 181), or of the "use and occupation" (Wittome v. Lamb, 12 M. Wels. 813; Rebbeth v. Squire, 19 Beav. 70; Mannox v. Greener, L. R. 14 Eq. 456), of land, passes an estate in the land, and consequently a right to let or assign it (Wynne v. Walthall, supra; Wilson v. Curtis, 90 Me. 463, 38 A. 365).

The very terms of the will place the court in the position of the testator at the time of its execution. From them its general scope or plan is apparent (Murphy v. Carlin,113 Mo. 112, 20 S.W. 786, 35 Am. St. Rep. 701), and the extent of the personal trust created is plain. The testator had in mind to authorize his son, the executor named, to conduct the affairs of his estate, after the manner pursued by the testator, for the time indicated, if in the judgment and discretion of this executor he could keep the general estate together for 20 years from testator's death, except to the extent that he must provide and disburse the amounts necessary for maintenance, support, and education, within the designated periods, and not disturb the occupancy and use of the two respective estates created by items 4 and 5 for the two families.

If item 3 is given its proper place as the residuary clause, there is no difficulty in ascertaining that the intention of the testator was to direct the executor, in mandatory terms, to divide all the rest and residue of the estate between the several legatees and devisees therein named, so as to permit the occupancy of the two homes as indicated, and the expenditure of the annual sums for the necessary and proper maintenance and education specifically provided for. These duties were executorial; the executor being dead, they devolved upon the administrator cum testamento annexo. Tarver v. Haines,55 Ala. 503; Patton v. Crow, 26 Ala. 426; Proctor v. Scharpff,80 Ala. 227; Mitchell v. Spence, 62 Ala. 450; Werborn v. Austin, 77 Ala. 381; Watson v. Martin, 75 Ala. 506.

In so far as the will reposed a personal trust in Mentor B. Johnson, his death before the execution of such trust left no function to be exercised by the administrator. Anderson v. McGowan, 45 Ala. 462; Tarver v. Haines, 55 Ala. 503; Mitchell v. Spence, supra; Hinson v. Williamson, 74 Ala. 180; Robinson v. Allison, 74 Ala. 254; Werborn v. Austin, supra; Christian v. A. F. L. M. Co., 92 Ala. 130, 9 So. 219; Crenshaw v. Crenshaw, 127 Ala. 208, 28 So. 396. But moneys expended by the executor in the administration of the personal trust, to wit, for maintenance, for the improvement of the homes, or of either home, or for any other purpose proper under his discretionary power, are not proper charges as advancements, to be deducted from the distributive share of the devisee or legatee receiving the benefit.

The personal and discretionary powers with which the executor, Mentor B. Johnson, was clothed, authorized him to keep the estate together for 20 years should he see fit (item 7), or to sell, dispose of, and convey any or all property of the estate, on such terms and at such prices as he would allow if he owned the property, in all respects as fully and completely as the testator could sell and convey, for any purpose that he might think proper, and without interference by any one, after the funds for maintenance, education, etc., provided for in items 4, 5, and 6 were secured.

A court of chancery has the jurisdiction and power to safeguard the rights of the cestui que trust, and to administer the estate of the testator according to his testamentary intent. That a court of probate might have had difficulty in so doing, under the will before us, without its construction, is evident. The appellees filed a bill to remove the administration of the estate from the probate court to the chancery court, and properly prayed an interpretation of the will. The administrator in his answer likewise asked for its interpretation. After subsequent amendment of the bill, the administrator, in a petition, again asked this interpretation. Any legatee, as well as the administrator, may on proper application have the will construed.

In the present state of the record, the important inquiry is the correctness vel non of the trial court's construction of the will, rather than at whose instance that construction was invoked. The complainant, as a legatee and devisee, had the right to have the administration of the estate removed from the probate court to the chancery court, where the estate could be fully administered. A chancery court taking jurisdiction of an estate takes it for all the purposes of due administration.

In Ashurst's Case, 175 Ala. 667, 57 So. 442, the personal representative did not have the unqualified right of removal, but the necessity for a construction of the will and for the administration of the trust was sufficiently averred to authorize the removal to the chancery court at the insistence of the personal representative. Thus the right of the personal representative to have the removal of the estate from the probate court to the chancery court is differentiated from the unqualified right of a legatee or devisee to have such removal where there exist equitable grounds therefor.

The decree of the chancellor is affirmed.

Affirmed.

ANDERSON, C. J., and SAYRE and SOMERVILLE, JJ., concur.

On Application for Rehearing.