53 Tenn. 489 | Tenn. | 1871
delivered the opinion of the court.
This bill was filed to have a construction of the will of Samuel R. Rodgers, who died in Knox county in 1866. Many years before his death he had written his will and signed it, and at a later period, probably, he had written and signed a codicil to his will, but no date is given in either the will or codicil, and it is only from extraneous facts that any approximation to the date of either can be made. In the construction, however, the date is not a very material fact.
The will and codicil being both in the handwriting of the testator, without witnesses, and found among his valuable papers, were admitted to record under the provisions of the law as to the probate and recording of such wills. He made provision for his mother and two sisters, all of whom died before he did. He devised real estate which he had disposed of before his death. He had three living brothers and one who
The main question in the case arose between the three brothers, who were living at testator’s death, and the children of his deceased brother.
After making provision for his mother and sisters, testator devised his two houses and lots to his two sisters during their natural lives, and to the survivor of them, and “at their death said real property to be sold, and the proceeds to be divided among my brothers, if living, and if dead, to their children, in which I embrace the children of my deceased brother, Alexander Rodgers. I mean that the remainder shall go equally to all my brothers and their children, as of those now living as those dead.”
He gives a legacy of five hundred dollars to his niece, Virginia Rodgers, “to be paid out of any money on hand; the balance of money on hand is to be kept at interest for my mother and sisters, and at their death to be divided as before stated among my brothers and their children.” He then concludes: “And all my other property I give and bequeath to my sisters, with the qualifications above made.” At the bottom of the will, after his signature, the testator added the following:
“ I give and bequeath to each of the children of Dr. A. R. Rodgers one hundred dollars, to be paid out of my estate as soon as convenient,” which was signed and sealed, but without date.
Complainants are the children of Dr. A. R. Rodgers, and they claim that under the will they are en
This statement of their respective claims presents the first question for determination. Two of the brothers of Sam. R. Rodgers, viz., ¥m. Rodgers and Thomas Rodgers, were living when the bill was filed — the other being then dead. ¥m. and Thos. Rodgers answer the bill, and admit most of the allegations as to the making of the will and codicil, the death of testator’s mother and sisters, and the provisions of the will and codicil, and ask their construction by the court. They say that the $100 has been paid to each of the children of A. R. Rodgers, and that the payments were made under the belief that this was all to which they were entitled. They stated that being of opinion that the estate, after the specific legacies were satisfied, was to be equally divided among the three brothers. They entered into an agreement to that effect, and settled among themselves without for.mally executing the will according to its provisions.
They give their reasons for believing that the testator changed his purpose as to giving the children of A. R. Rodgers an equal fourth of his estate. They say that he was an ardent and enthusiastic Union man during the war, and that he was offended with A. R. Rodgers’ children because they were rebels, and on that account he determined, and so frequently
Defendants rely on these declarations of the testator as evidence that he had changed his purpose in regard to giving the children of his brother A. R. Rodgers an equal share of his estate, and as indicating that it was his intention, by his codicil, to revoke so much of his will as had given them such share.
The parties went to trial on bill and answer, and according to a well settled rule of chancery pleading and practice, “ the answer is to be considered true in all points, and when the defendant states that he belives and hopes to be able to prove such and such matters, they are considered as proved”: Brinkerhoff v. Brown, 7 John. C. R., 222. It is not meant by this rule that the legal deductions insisted on in the answer are to be considered as true, but only such matters of fact as are stated in the answer by way of defense, or evidence of the equity set forth in the bill.
But notwithstanding this change in his purpose as to A. R. Rodgers’ children, and notwithstanding his perfect right, for the reasons assigned, or for any others, to revoke his former action on the subject, yet he did not carry out his new purpose by destroying his old will or by making a new one, but after his death, his old will was found among his valuable papers, and has been set up, and recorded as the legal disposition of his property. It is clear, therefore, that the matters set up in the answers do not in law amount to a revocation of the original will. Nor is it contended that the dying declarations of the testator constituted a nuncupative will, which could operate as a revocation of the written will. It was not reduced to writing in the life-time of the testator and read over to and approved by him: Code, s. 2167.
But it is said that in ascertaining the intention of the testator, the matters stated in the answer, and which indicáte the change in testator’s feelings towards complainants, may be considered in determining the proper construction of the codicil. It is well settled
In the original will, the testator expressly embraces the children of his brother Alexander, as equally objects of his bounty with his other three brothers. The second shows that his brother Alexander had died in 1846, leaving four children in the State of Alabama, three daughters and one son. His other three brothers were living in his neighborhood, as we may infer from the record. At the time of writing his will he had no preferences, but desired them all to share equally. Afterwards, (but when, it does not appear) he adds to his will, “ I give and bequeath to each of the children of Dr. A. E. Eodgers $100, to be paid out of my estate as soon as convenient.”
It is argued that, viewed in the light of the matters stated in making this addition to his will, testator was carrying out the purpose indicated by the declarations of his dissatisfaction with complainants because of their politics. But there are two difficulties in the way of this inference. First, respondents say'in their answer that “the testator, who was an ardent and unflinching .Union man, frequently expressed his determination to do nothing for (to use his own expression) his rebel kin, and often alluded to the fact that the sons of the said Alexander were rebels, and several of them in the rebel army.” But ac
It is competent, by extrinsic evidence, to show the condition and circumstances of the testator and his family, and those in position to expect his bounty, or named in his will; but not to give direct evidence by means of declarations of the testator, or by proof
We start out with the presumption that the testator intended by the bequest of $100 each “to his brother Alexander’s children, that this bequest should be cumulative. Viewing his language used in his will and his codicil in the light of surrounding circumstances, is this presumption rebutted? By the language of the will, testator plainly intended the children of his brother Alexander to have an equal share of his estate; and by the language of his codicil 'he intended them to have $100 each, to be paid as soon as convenient. When we look to the surrounding circumstances, we see that when the will was written testator’s mother and sisters were living; that they were to have the use of his property while they lived, and that the division, in. which his - brother Alexander’s children were to have an equal share, was not to take place until 'after the death of his mother and sisters. Whether the codicil was written before or after the death of his mother and sisters we can not tell, as it has no date. But as there is nothing indicating the precise time of the writing of either the
As to the clauses in the will itself, of which a construction is sought, we are satisfied that the Chancellor has given to them their proper interpretation. The testator meant that his property was to be divided equally among his living brothers and the
The decree of the Chancellor dismissing the bill will be reversed, and a decree rendered here declaring the rights of the parties. The cause will be remanded for further proceedings. The costs of this court will be paid by defendants.