75 So. 926 | Ala. | 1917
Lead Opinion
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 *180 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,
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,
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,
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,
"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 *181 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,
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,
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,
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,
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,
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 *182 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,
The decree of the chancellor is affirmed.
Affirmed.
ANDERSON, C. J., and SAYRE and SOMERVILLE, JJ., concur.
Addendum
No general rule can be stated that will always determine when the beneficial interest was intended to be conveyed or when a trust was created. The intention must in each case be gathered from the general purpose and scope of the instrument. Perry on Trusts, §§ 82, 151, 158; Cress-well's Adm'r v. Jones,
A trust will usually be created by a provision for the support, maintenance, or education of others, and especially where the direction for such support, maintenance, or education is imposed on an executor or a guardian. Thompson, Wills, § 355. If the person charged with the support, maintenance, or education is given a discretion that is subject to the control of the court if misused, a trust is created. This discretion must be honestly and intelligently exercised; if it is not, a court of equity will compel it. Collister v. Fassitt,
On further consideration of the provisions of the will having for their purpose the maintenance and support of testator's two minor children, and their proper education, we are of the opinion that the amounts necessary for such purposes may be ascertained by a court of equity annually or periodically, as may be necessary, and the payment thereof compelled from the body of the testator's estate. It is clear that the testator's intent was that such expenditures, so charged as a trust against the corpus of the estate, should from time to time be ascertained, and paid to the beneficiaries or to their guardian in such reasonable periodic installments as the circumstances of the case might warrant, and that such sums were not intended to be ascertained and paid as "one amount." If the proposed expenditures should be now ascertained and ordered paid in one amount, it is obvious that in the future the same might not prove sufficient to meet the ends designed by the testator. Again, if such provided expenditures should be presently so ascertained and set apart, as "one amount," out of the corpus of the estate, and either or both of such beneficiaries should die, or should decline to receive such benefit under the will, then the body of the estate will have been unnecessarily reduced by the carving therefrom en bloc of said amounts — the amounts presently calculated to be necessary, but thereafter proving to be not required, by the changed circumstances of the case.
It may not be requisite and necessary that the entire estate be kept together for the period for which such charges are provided to be made, but that an ample sum to meet these expenditures can be otherwise marshaled, and retained by the personal representative. This would somewhat depend on the amount, nature, and character of the estate, and on the reasonable necessities of the beneficiaries in the light of the purposes of the will. On this point the decree of the chancellor is reversed, and the cause is remanded for further consideration under the pleading and the proof. In all other respects the decree is affirmed.
Affirmed in part, and in part reversed and remanded.
ANDERSON, C. J., and SAYRE and SOMERVILLE, JJ., concur.
