70 W. Va. 296 | W. Va. | 1912
Lead Opinion
■ On July 8, 1907, Mrs. C. W. Arnett, by an instrument, wholly in her own handwriting, undertook to make a testamentary disposition of her propert)', as follows:
“Should I not lire I place in the hands of my two brothers, Dr’s. W. C. Jamison and J. A. Jamison and Rev. W. J. Eddy the sum of $40,000 dollars (or if one or more of said parties should not be living that the Trust Company select two Christian men in place of absent one) to be placed and used to the very best of said parties knowledge in helping the poor those who are deserving, in lifting young men up and helping the work along in putting down intoxicants drinks and 'saving souls. Let this money be used in the way God may direct for His cause.
' “To m,y sister Lou John I give $3,000 my brother Pierce L. Jamison $1,000 my sister Ellen Fear $2,000 my brother David Lee Jamison $1,000 $1,000 to Mrs. Rie Arnett. Let her use all that may be needed to malee her daughter Ora comfortable.
“Continued July 8th, 1907.
“$3,000 I put into the hands of my brother,' Doctor W. C. Jamison or should he not be living let the Trust Company'select a true competent man. the money to be 'used for my son Glenn J. Arnett if at any time he may b,e in need of help but in no way or at any time to be instrumental the use of said money in causing him to do wrong. But should he prove-wortlry, and live right let the money be used in helping him in business or in any way right.
“$50.00/00 fifty dollars I place for an office desk my son Glenn J. Arnett.
. “$125.00/00 for the best Type writer.
“$1,000 to be used in buying a home for Miss Dora Bell Ar-nett and to make her comfortable'.
“$10,000 to be placed in the Baptist Church' to be used.for Lord’s work in the way he may direct. ■ • ■
*298 “If any money left after distribution let it be return to the estate of C. W. Arnett."
The plaintiff, Glenn J. Arnett, son of the testatrix, and for ■whom provision is made in the will, charges in his bill that the purported bequests, of $40,000 in the first clause, and of $10,-000 to the Baptist 'Church, in the next to the last clause, as well as the- last or residuary clause, providing, that “If any money left after distribution let it be return to the estate of C. W. Arnett," are each wholly void for uncertainty. He professes his willingness, however, that the Baptist Church, to whom $10,000 is given, should be paid, not the full amount, but a ratable proportion of the net amount of the estate, alleging that the estate is not sufficient to pay all bequests in full.
It is charged, among other things, that as to’ said $40,000, and $10,000 bequests, the testatrix died intestate, and that plaintiff as her sole heir at law is entitled to the whole amount thereof.
The Fairmont Trust Company, administrator with the will annexed of the estate of said testatrix, and as executor of the estate of C. W. Arnett, deceased, with others, is made a defendant. An injunction is prayed for restraining the payment of said legacy of $40,000; and there is also a prayer for an accounting; for a decree for the money found due plaintiff on settlement, and for general relief.
We think the bill is good on demurrer, and that the demurrer was properly overruled.
The Fairmont Trust Company in its answer, as administrator with the will annexed of said testatrix, admits that the two bequests of $40,000 and $10,000 respectively, and the last or residuary clause, are all very indefinite, and that it is unable to administer the estate without a construction of the will, and the advice of the court. In its answer and cross bill, as executor of the will of said Calvin W. Arnett, deceased, said company admits and charges the invalidity of the bequests, $40,-000 and $10,000, and prays that they be so declared. But it denies that the last or residuarjr clause is invalid; on the contrary it charges the same to be legal and valid, and competent to carry the whole of the estate of said testatrix, not legally disposed of by her will, back into the estate of said testator,
On this appeal, by Marguerite Wilcox, (late Arnett) and by the Fairmont Trust Company, in both its fiduciary capacities, two questions are presented: first, whether the court below erred in its final decree, in adjudging on bill and cross bills, the bequests of $40,000 and of $10,000 respectively, to be void; second, whether the court erred in decreeing also said last or residuary clause to be also void for uncertainty.
Clearly the two bequests of $40,000 and $10,000 are void for uncertainty. This is practically conceded. The main contention is as to the last or so called residuary clause. Is it also void, or is it competent to carry the money covered by the invalid bequests back into the estate of O. W. Arnett? Section 13, chapter 77, Code 1906, relating to wills provides: “Unless a contrary intention shall appear by the will, such real estate or interest therein as shall be comprised in any devise in such will, which shall fail or be void, or otherwise incapable of taking effect, shall be included in the residuary devise (if any) contained in such will; and if there be no residuary devise therein, such, real estate or interest shall go to the heirs-at-law of the testator, as if he had died intestate.”
The clause in question is in form clearly a residuary clause, but if it be also void for uncertainty, as it is claimed it is, and as the court below decreed, there is no error in the decree; otherwise there is, and for which it must be reversed. The language is: “If any money left after distribution let it be return to the estate of C. W. Arnett.”
It is evident from the language used, that to sustain the clause as a valid disposition of propertjq we must, be-^able, under recognized rules of construction, to interpret the words “estate of C. W. Arnett,” as definitely referring to the executor of the yyill of C. W. Arnett, deceased, and also to interpolate after tbem these words, or their equivalent, “to be taken, held and administered as a part of his estate and according to the terms and provisions of his will.” 4 If the intention of the testator be clear, well recognized rules of construction permit courts to supply and interpolate words, and even to fix the sense of ambiguous words. It is well settled, that in the disposition of
Let us refer to some authorities bearing on the question. In an old English book, Hawkins on Wills, cited by the Court of Errors and Appeals of New Jersey, in Halsey v. Patterson, 37 N. J. Eq. 445, 448, it is laid down as a rule that a bequest of personal estate to- the “representatives,” or “legal,” or “personal” or “legal personal representatives” of any one, means
In Webb v. Den, 17 Howard 576, the terms of a deed were under construction. It contained no words of give, grant, bargain, and sell, and so.forth, but only “a release and quit claim forever, unto the legatees and devisees of Anthony Bledsoe, de- ■ ceased.” The will of Bledsoe was in evidence. The objee
We understand counsel for the appellees to practically concede that if in place of the words used, by the testator, she had said “let it be returned to the executor of the estate of C. W. Arnett”, the effect of the bequest of the residuum of her estate, would have been to pul it back into the estate of her husband, to be distributed as a part of his estate. His position furthermore is that as the will of the testator, though in evidence, is nowliere referred to in the will of the testatrix, the former cannot be looked to to render certain the bequest of the testatrix, or to determine to whom the residuum of her estate is to go, or how to be distributed. Besides the general rules which counsel invoke, as to the certainty and definiteness of the subjects and objects required in a devise or bequest, he relies upon Clinton v. Hope Insurance Co., 45 N. Y. 455, 461, and Simmons v. Spratt, 20 Fla. 495, 505. The Florida case was an ejectment suit. The deed involved was that of the executors of one I. D. ITart. The executors by it, “sets apart, distributes and conveys unto the estate of Daniel W. Hart,” a certain lot. The court in that case observes: “The question is, does a deed of conveyance by the executors of I. D1. Hart, who, under his will and an order of the court, are authorized to distribute I. D. Hart’s estate^ conveying and setting apart this lot to the estate of Daniel W. Hart, vest such title in the devisee of Dtaiel W. Hart who alone under the terms of his will could acquire it as would enable such devisee to maintain ejectment?” The Florida court thought in that case that the description of the grantee, “the estate of Daniel W. Hart” in the deed, was too vague and uncertain to constitute a good grant at law, and observed: “Here there is no grantee bjr name or otherwise, and no reference to the will of D’. W. Hart is made.” -Ho authorities are cited by the court for this conclusion; but it is admitted that there are some cases, which make such a deed effective to pass title to the administrator, where he takes the title of the
The case of Clinton v. Hope Insurance Co., supra, was an action upon a fire insurance policy, insuring the “estate of D'an-iel Ross.” The property insured was destroyed by fire pending negotiations for the sale and. conveyance of it by the parties who owned it when the policy was issued, but after the vendee had gone into possession. After the fire a new contract was entered into between the same parties, the vendee purchasing the real estate and claims for insurance, and talcing a deed. It was held, that the vendee by the first contract acquired no title to the property, and that by his second contract the claims to cover the amount insured were not extinguished; that the destruction of the property which fixed the liability of insurance, at the same time discharged the vendee from his obligation to purchase; and therefore, that the insurers could not be sub-rogated to that obligation to the extent of their liability for insurance. In the body of the opinion the court says: “The person or persons to be insured are not named in the policy, nor is this essential to the validity of the contract of insurance.”
“If the name of the person for whose benefit the insurance is obtained does not appear upon the face of the policy, or if the designations used are applicable to several persons, or if the description of the assured is imperfect or ambiguous, so that it cannot be understood without explanation, extrinsic evidence may be resorted to, to ascertain the meaning of the
We do not say, or mean to be understood as saying that the rule applicable in an action upon a policy of insurance laid down in the New York case, is applicable to the full' extent in cases involving the construction of wills; but'if a policy of insurance in favor of the “estate” of one named is not void for uncertainty, and may be rendered certain by extrinsic evidence, why on like principle, may not extrinsic evidence be employed to render certain who was in.the mind of the testator when employing similar language to describe tire object or objects of her bounty? Of course there is a distinction to be recognized between the words of a will and of a contract inter paries. If, however, the object of a testator’s bounty can by extrinsic evidence, and without doing violence to the language of the will, be definitely ascertained, what reason can be assigned against its admission? The New York case was cited by counsel for appellees, for the' proposition that “the estate of R.”, in the policy, did not have a definite legal significance, “meaning R’s administrator.”
Though the language of the will here is not as clear as might be desired, in manifesting the intentions of the testatrix, jret we think it bears evidence on its face of á clear intent and purpose, on the part of the testatrix, that the plaintiff, her son, for whom the father in his will, had made an elaborate “spendthrift” provision, well known to and understood by her when she made her will, should take nothing under her will, except as specifically provided. In making the small provision for him, and in attempting to dispose of the bulk of her estate, so derived, to religious and charitable uses, she evidently intended that he should look for his main support to the will of his father, and the estate devised to him therein, and subject to the terms and conditions thereof, wisely made. Therefore, the ■main provisions of her will having failed because of uncertainty,
We are of opinion, therefore, taking the will of the testatrix by its four corners, that the words of the residuary clause, “let it be return to the estate of C. W. Arnett,” means to the executors of the will of said C?. W. Arnett, deceased, to go and be distributed, as by the terms of his will, his estate is directed to be distributed to his legatees. We think the principles of the authorities cited justify this conclusion.
Our opinion, therefore, is to reverse so much of the decree appealed from as adjudges said residuary clause invalid; and gives decree in favor of P. B. Ogden and others, trustees of the Baptist Church, for $10,000, as provided therein. In other particulars the decree will be affirmed.
Affirmed in part. Reversed in part.
Dissenting Opinion
(dissenting):
I dissent for the reason that I believe the residuary clause is void for uncertainty. Testatrix bequeathed the residue of her estate to* the “estate” of her husband.; who was then dead. An estate is not a person, either natural or artificial; nor can the word-be properly construed, in my opinion, to mean a person. It means the quality of interest in property, or property rights. It is a thing as much incapable of taking and holding property, either by deed or will, as it is of taking by inheritance, or of disposing of property. What right has the court to say that testatrix meant her husband’s executors, by the use of the word estate, and that they were to take, not absolutely, but in their official or representative capacity? iSTone, whatever, as I see it. Testatrix made no reference to her husband’s will, and yet the majority opinion holds that she disposed of her property in the manner in which her husband had disposed of his. But suppose he had not made a will, and the bequest had bieen made, as it is now, to his estate, would the word estate