94 Tenn. 252 | Tenn. | 1895
Nehemiah Rutherford died in White County, in this State, possessed of a considerable real and personal estate, and leaving a last will and testament, which was duly admitted to probate in that county. His estate consisted in part of $6,000 on deposit in the Bank of Sparta and about $1,500 in promissory notes. The complainants are of the next of ldn of the testator, not provided for in his will, and they file this bill asking for a construction of this instrument and alleging that, as to. this money and these notes, the testator died intestate, and that, as the result of such intestacy, they, with other distributees, named as defendants, are entitled to share in this part of his estate. Among the defendants to the bill is one J. W.
“First.- — I direct that my funeral expenses and all my debts, if any, be paid as soon after my death as possible, out of any moneys that I may die possessed of, or may first come into the hands of my executor.
“Second. — I will and bequeath to my nephew, James W. Orr, my entire farm, or all the lands I own, or, in case that I should sell the same before I die, the proceeds is to be his.
“Third. — I direct, if there is any money on hand at my death, that my executor purchase out of the same a one hundred dollar tombstone. and place it at the head of my grave, and should there be no cash on hand at my death, then, in that event, it is to be bought as soon as the money can, be collected from my cash notes.
“Fourth. — I will and bequeath to Adaline, the colored woman now living with me, one hundred dollars, to be paid as soon as practicable by my executor, for her services since the late war.
“Fifth. — I will and bequeath to my nephew, James ~W. Orr, all the money arising from the sale of my stock . of every kind, and all of my loose property*255 of every land, -which I direct to be sold as the law directs.
“Sixth. — The testator provides for the appointment by the County Court of an executor.
The general rules for the construction of a will, so far as it is necessary for them to be stated, are here given:
1. The Court is to ascertain the intention of the testator, and this intention is to be found within the will itself (Pritchard on Wills, Sec. 384), but this rule does not forbid a reference to the facts or conditions under which it was made. Pritchard on Wills, Sec. 409; Schouler on Wills, Sec. 406.
2. The presumption is that a man who under-dertakes to make a will does not intend to die intestate as to any part of his property, and the Court will place such a construction upon the instrument as to embrace within its operation all the testator’s property, if this can be done by any fair interpretation or allowable implication. Pritchard on Wills, Sec. 386; Williams v. Williams, 10 Yer., 25.
3. The grammatical construction of the instrument must prevail where a contrary intention does not appear (Pritchard on Wills, Sec. 394); but where a grammatical construction would frustrate this intention, or where the words used are unintelligible, obscure, or absurd, and give no effect to the testator’s manifest legal intention, then, in order to effectuate this, the Court may transpose, reject, or supply words. Pritchard on Wills, Sec. 395; Raid
In the light of these rules, it will not be a difficult matter to ascertain the intention of the testator in this instrument. Rutherford was an old man, without wife or lineal descendants. He had lived on his farm in White County for a great number of years, where, by his frugality, he had accumulated a considerable estate. So far as this record shows, he lived alone, except for the fact he had in his service the negro woman, Adaline, who is mentioned in his will, and her husband. He was one of a family of eleven children, of whom he was the only survivor. His brothers and sisters were long since dead, leaving descendants scattered through several States. None of these lived in White County. No friendly intercourse seems ever to have existed between the testator and • any one of these relatives, save in the case of his devisee and legatee, James W. Orr. This latter was a nephew, living 'in the eastern part of the State. For some reason, the uncle evinced a strong, attachment for him. Their relations were of a very friendly character. Rutherford was an intense partisan, and their political sympathies were the same. At intervals they exchanged letters, and, at still longer intervals, this nephew made visits to his uncle, the latter generally soliciting the visit, and always paying the expense of the trip. While the testator was by nature and habit a secretive man in regard to his es
This preference, indicated by conversation and correspondence, was no less manifested in the testator’s last will. Orr, of all his numerous and scattered relatives, is the only one mentioned or provided for in this instrument, and to him is given the farm, which complainants allege to be “very valuable,” and “all the money arising from the sale of his stock of every kind, and all his loose property.” In fact, he is given all of the estate which shall be left after the payment of the small legacy to his old servant, and of his debts and funeral expenses, including the purchase of a tombstone, unless it be, as complainants insist, that the money and choses in action were undisposed of. Having indicated in his social relations, and in his will, this decided regard for his nephew, and his purpose to make a generous provision for him, it would be, at least, remarkable that this testator should have been willing to die intestate as to so considerable a part of his estate, and to leave it for distribution among collateral kindred to whom he had been so indifferent in life.
It will he seen the testator, before reaching this item, has already provided for the payment of his debts, etc., and has disposed of his realty, or its proceeds if it should be sold by him during his life. In other words, in the preceding clauses of the will, after providing for debts, etc., he has’ given all of his estate, to his nephew, except the personalty, and this fifth item deals with that exclusively. If, in that clause, the testator had said, “I will and bequeath to my nephew, James W. Orr, all the money arising from the sale of my stock of every kind, and all my property of every kind,” and had stopped there, then there could be no question but that these words would have carried to the legatee the title to both the money and notes in c'ontroversy, for the word ‘£ property ’’ is a generic term, and includes both real estate and personalty of all kinds, unless the context shows it to used in a more limited sense. Pritchard on Wills, Sec. 416; Schouler on Wills, Sec. 510. And it has been frequently held to embrace money and securities. Arnold, v. Arnold, 2 Mylne & Keene, 365; Pell v. Ball, Spear’s Ch., 48; Hurdle v.
But it is insisted that the rule of ejusdem ge-neris is to be applied here, and that the words “loose property” are limited in their effect by those preceding, to wit: “ Stock of every kind.” We do not think so. This is a residuary clause, and the xise of the word £ £ all ” indicates clearly that the word “property” is not to be limited to the character or kind of property described in the clause preceding. It is sufficient on this point to refer to the cases of Jarnagan v. Conway, 2 Hum., 49; Williams v. Williams, 10 Yer., 25; and Edmondson v. Edmondson, 1 Tenn. Ch., 568.
But it is insisted that the words, £ £ which I direct
But it is unnecessary 'to transpose in order to carry out the intention of the testator to make James W. Orr his full residuary legatee. This direction to sell, at the most, only implies uncertainty in the mind of
The case of Hearne v. Wiggenton, Maddox & Geldart’s Rep., p. 119, was similar in many respects to the one at bar. In that case, the testator bequeathed various legacies of different kinds, such as wearing apparel, beds, bedding, as well as sums of money, to different legatees. One of these legatees was H, to whom was given, in one of the earlier clauses of the will, the sum of ten pounds. This same party, H, was made the residuary legatee in these words: ‘ ‘And all my other effects I will to ’ ’ H, “ to be sold for his benefit,” and the question was, whether, under this clause, money in the funds passed, or only the residue of the testator’s goods. The conclusion of Sir John Leach, Vice Chancellor, on this clause, was as follows: “The rule in question is, whether a general residuary gift is to be limited and qualified to property which is the subject of sale; however, the testator has added that his residuary property is to be sold for the benefit of his residuary legatee. It is uncertain at the making of the will what the testator’s property may consist of at his death, and the direction to sell implies only a general intention on the part of the testator that his residuary property shall be converted or collected for the benefit of his residuary legatee.”