Pitts v. HowardPitts v. Howard
Having the advantage of ap inspection of the will itself, the court below made these observations with respect to its structure:
*382 “And it appearing to the satisfaction of the cоurt 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 еstate, 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 rеal 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 рersonalty, into money, to be so regarded as of that time (testator’s death), investing these respective classes with the stipulated proportionate interests in the aggregatе proceeds of the sales of the real estate (Allen v. Watts,
It results from these considerations, especially the authoritative expression of principles set forth in Allen v. Watts, supra, that the testator did not devise аny 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 a remainder 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 thе 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 suсh 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 “Als.o all my personal property of every kind after my debts are paid, should therе 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 “alsо” 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,
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 tо 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 testatоr’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 proceеd 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 hut collateral, incidental to’ the substance of the issue presented and actually decreed by the probate court. The conсlusion 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 decrеe, 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 evidencе 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,
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 decreе 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.