Pitts v. Howard , 208 Ala. 380 ( 1922 )

Having the advantage of an inspection of the will itself, the court below made these observations with respect to its structure:

"And it appearing to the satisfaction of the court from the evidence in this cause that the will of Robert Isaac Van Hook was written by testator himself without legal aid or advice; that the same is written in the handwriting of testator; that there is little and insufficient punctuation therein; that there are therein numerous erasures, corrections, at least two interlineations, and one omission of the final syllable of a word; that at least one piece of testator's real estate was omitted by him from the schedule of same in his will; that the whole is labored and anything but clear and concise. * * *"

The construction of the instrument is undertaken in the light of the crude methods employed to express the testator's intent.

The testator's design was to dispose of his entire estate, real and personal. After devising to his wife — should she survive him, as was the event — a life estate in all his real property, he directed, without condition or qualification, the sale for cash, after the death of his wife, of all his real estate, to the end that the proceeds of such sales should be distributed to two classes, viz. nephews and nieces of his blood and nephews and nieces of her blood. The direction to sell the remainder in the real estate, after the death of his wife, was absolute and without contingency, operating, at the death of the testator, to effect the equitable conversion of such remainder into personalty, into money, to be so regarded as of that time (testator's death), investing these respective classes with the stipulated proportionate interests in the aggregate proceeds of the sales of the real estate (Allen v. Watts, 98 Ala. 384, 394, 11 So. 646), subject to be apportioned to individuals by the exercise by Mrs. Van Hook in her lifetime of the limited power of apportionment committed to her. This limited power of apportionment, viz. to fix the proportions, not to determine the bequest itself, among individuals within the description of the class or classes, was not exercised by Mrs. Van Hook; but this omission of the repository of the power did not operate to qualify or to annul the bequest of this converted realty into personalty, the failure to exert the power leaving the distribution to be made in equal individual proportions among those within the classes described, viz. the nephews and nieces of the testator living at his death being entitled to equal individual shares in two-thirds of the proceeds of the sales and the nephews and nieces of Mrs. Van Hook living at the death of testator being entitled to equal individual shares in one-third of such proceeds. Code, § 3432; Connell v. Cole, 89 Ala. 381, 384,8 So. 72. The respective interests in the personalty, the money, having become vested as of the date of testator's death (Allen v. Watts, supra), the interest of such nephews and nieces (of either class) as died after testator's decease were distributable, in the absence of testamentary disposal, to their next of kin.

It results from these considerations, especially the authoritative expression, of principles set forth in Allen v. Watts, supra, that the testator did not devise any estate in his real estate to the two classes of nephews and nieces described in the will; and hence the decree (paragraphs 3 and 4, particularly) is affected with error in the aspects it affirmed the investment of these classes with aremainder in the real estate which was directed to be sold after the death of the life tenant. The equitable conversion wrought by the will characterized the substance of testator's bounty to the classes described as money, not real estate.

In the decree the court declared the title of the widow to be absolute in the personal assets of testator's estate, other, of course, than the real estate in which she was devised a life estate. It is insisted that a life interest in such personal assets was the testator's purpose, as it was, manifestly, with respect to the real estate. While the testator's method and form of expression is far from lucid, it is quite evident, we think, that he did not intend to subject the personal assets to the rule of limited right and enjoyment he imposed upon the devise to his widow of a life estate in the real estate. The argument to the contrary is based, chiefly, upon the use of the word "also" in the incomplete phrase "Also all my personal property of every kind after my debts are paid, should there be any." Having just preceding this provision expressly limited the devise to a life estate to his widow in the real estate, it is certainly not clear that the testator intended by the use of "also" to likewise limit the widow's interest in the personalty. "Also" does, upon occasion, mean "in like or in the same manner." 1 Words and Phrases, Second Series, p. 196; Platt v. Brannan, 34 Colo. 125, 81 P. 755, 114 Am. St. Rep. 147. Upon occasion it may signify "in addition to," or "besides." Incomplete, grammatically, as is the expression in the phrase quoted, it is evident that the testator realized he was treating different characters of property, one real estate and the other personalty. In respect of the former he avowed his purpose to restrict the interest to a life estate in the widow, and in respect to the personalty he omitted that express avowal. While directing the sale of the real estate after the death of the life tenant, he, on the other hand, provided no disposition for personal assets after the death of his widow. As written, the will contemplated a full disposal of the real estate, but for the disposition of the personal property he made no provision beyond the bequest to his widow. There is no provision for a disposition of a residuum of the estate. So, if the instrument should be construed as bequeathing a life estate, only, to the widow in the personal property, intestacy as to the remainder therein would result. The presumption is against intestacy as to the whole or any part of the testator's estate, and the instrument will be so construed, unless the language of the will is fairly inconsistent with such a construction. 40 Cyc. p. 1409.

The decree of the probate court, passing Mrs. Van Hook's final account on the settlement of her administration, with will annexed, of Hook's estate, did not conclusively adjudicate the status of Mrs. Van Hook's interest in the personalty to be that of a life tenant. The construction of the testator's will in that particular was at best collateral, incidental only to the matter at issue on that accounting in the probate court. It was incumbent upon that court, or at least the court so undertook, to dispose of the personal assets (money) in accordance with the directions of the testator's will. To serve that purpose and to effect that end it was not essential to determine whether the personal assets, the money on hand, was bequeathed to the widow for life or absolutely. The court by a recital expressed the opinion that in the balance on hand the widow was vested with a life interest only; but the adjudication, made by the decree, did not proceed to the judicial affirmation of fact, construing the will, that such was the effect of the will. Even if the decree proper, as distinguished from the recital indicated, had affirmed in accordance with the opinion expressed, that matter was but collateral, incidental to the substance of the issue presented and actually decreed by the probate court. The conclusion upon a matter but collateral, incidental to the issue to be adjudicated, is not binding upon parties or privies.

"The conclusiveness of a judgment extends only to the question directly in issue, and not to any incidental or collateral matter, though it may have arisen and been passed upon." Ford v. Ford, 68 Ala. 141, 143, 144.

Hence no estoppel was erected by that decree, binding the widow, her next of kin, or heirs at law, concluding to the effect that in the money on hand the widow took only a life interest under the will.

Apart from these considerations, the evidence does not show that the funds found after Mrs. Van Hook's death or then on deposit in bank to her credit were, in whole or in part, funds that came to her from the estate of Robert I. Van Hook, deceased. Perhaps that was its source, but the evidence does not so disclose. From rents of the real estate she may have gained the funds found after her death. Under the evidence the moneys on deposit in bank and the moneys found about the premises after her death were funds of Mrs. Van Hook's estate, subject to distribution to her next of kin and heirs at law. Sewell v. Sewell, 199 Ala. 242, 74 So. 343.

For the erroneous pronouncements made in paragraphs 3 and 4 of the decree under review, it is reversed. The cause is remanded for the rendition of a decree in accordance with this opinion. The costs of the appeal will be taxed one-half against the funds of the estate of Robert I. Van Hook, deceased, and one-half against the funds of the estate of Mrs. Van Hook, deceased.

Reversed and remanded.

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