94 Tenn. 547 | Tenn. | 1895
Robert C. Morris died in 1892, after having made a last will and testament, in which complainant was named as executor. The testator left surviving him a widow, the defendant, Kate Morris, and an only child, the wife of complainant, who are the principal beneficiaries of this will. A difference having arisen between them as to their respective interests under the will, this bill was filed by the executor for its construction.
While the sixth clause and a part of the seventh clause have produced this controversy, yet it is proper, in order to understand the conclusions reached by us, to give a synopsis of the other clauses of the will. By. the first, the testator directs all his debts, and
Upon this will, it is now insisted by the executor, that it is his duty to pay the debts of the estate and the legacies, and set apart the $5,000 for the benefit pf the imbecile sister referred to, and when this has been done, then, under the sixth clause, he is to divide whatever surplus there may remain of the personal estate, equally between the widow and the daughter of the testator, and that this share of the widow in this surplus is the full measure of her
The question, then, first for consideration is: What interest does the widow take, under the will, in the testator’s personal estate? To answer this, it is necessary to ascertain the intention of the testator in directing, as he does in the sixth clause, a division of the proceeds of his personal estate between his wife and daughter £ £ as the laws of the State of Tennessee direct. ’ ’ v
That his wife was an object of the testator’s affectionate care and • bounty is evident from the will, and it is apparent that he does not cut her off from the articles exempted by statute to widows, and from the year’s allowance, by the use of - inhibitory words. It is true that, under § 3125 of the (M. & V.) Code, only widows whose husbands die intestate, . or widows who dissent from the wills of their deceased
An examination of 2 Jarman on Wills, 674 et seq. (Randolph & Talcott’s Ed.), discloses that wills containing clauses like the one in question, that is, inferring the distribution of testators’ estates “to the statute of distributions,” or “to the law as it directs,” have been fruitful sources of litigation. As was said by the Master of Rolls in Starr v. Newberry, 23 Beavan, 436, “all such wills have peculiarities and inconsistencies which, if pointed out to the testator, would have been avoided. ’ ’ In each case, however, it has been the purpose of the Court to ascertain from the will itself the intention of the testator, and then to give the instrument that construction which will, if possible, effeckiate that intention, if it be a legal one.
It is to be observed that the testator in the will before us, in this sixth clause, after directing that his personal estate shall be settled up and closed with as much dispatch as is convenient, then provides that its proceeds be divided ‘£ between his beloved wife and daughter” — not equally, nor in any other fixed proportions, but as ‘ ‘the laws of the
Holloway v. Radcliffe, 25 Beavan, 163, is -a leading and instructive case on this point. The will in that case gave the property to the widow for life, and, after death, to the testator’s son, if any son was then living, but, if this son died during the life of the widow, then the executors were directed to convert the property into money, and, after payment of all expenses incident to such conversion, then, as to this balance, the testator uses these words: £iOne moiety, or equal hall part thereof, I
But it was insisted for the widow’s representatives that this division was in violation of the terms
Again, in Starr v. Newberry, supra,, a testator gave the residue of his personal estate to his executors, to pay the interest to his wife ‘ ‘ during the time of her natural life, or until she should marry again, in either of which events, to his child, if any, absolutely;” but, should his wife die or marry again without leaving a child, or should such child die before attaining the age of twenty-one years, then the trustees were directed to pay such moneys to “such person or persons as might be legally entitled to the same under the statute of distributions.” A child was born after testator’s death, and died while an infant, and the widow married again, and, in a controversy over the construction of the will,
In Fielder v. Ashworth, L. R., 20 Eq., 410, the words of the will were: “To distribute the residue to my relatives, share and share alike as the law may direct.” In construing these words, the Yice Chancellor said: “I think the intention of the testator was that, not having made up his mind how to divide his property, and probably not knowing-how it would go under the statute of distributions, he thought it better to leave it entirely to- the law, having- confidence that it would then be divided in the most proper manner. The only mode of effecting this object is to disregard the words ‘ share and share alike,’ and order the property to be divided as the law directs; that is, according to the statutes of distribution. ’ ’
The case of Alexander v. Wallace, 8 Lea, 569, is an instructive one. There the testator, in prior clauses of his will, having provided for the payment of his debts and certain legacies, proceeds: “I direct that the remainder of my estate, both real and personal, be divided among my heirs according to the laws of the State of Tennessee now in force, none preferred, none discriminated against.” The Court say that the obvious intention of the
Not only is this the rule of construction adopted by the Courts when the testator refers to the statute of distribution to determine the measure or quantity of his bounty, but, where the rights of the wife are involved, and a construction can be adopted consistent with the general intent discerned in the will, and favorable to those rights, the Courts lean to such construction. As, in Riley v. Reynolds, 39 Mich., 461 (33 Am. Rep., 418), the testator, in
In Adamson v. Ayres, 5 N. J. Eq., 349, the testator provided that his wife should have her lawful right of dower out of his estate, and it was held that, under these terms, she was not merely entitled to dower in land, bxrt to her statutory third of his personal property. The Court said: “Estate includes both real and personal property. We are asked to substitute the word £ lands ’ for ‘ estate. ’ This would certainly relieve the will of all difficulty of construction, but it would leave the clause useless, and it would leave no object or motive in the testator for introducing it but that of putting in the face of his will a clear intention of cutting off his wife from all interest in his personal estate.”
But it is insisted in the argument for the executor that, the words “settled up and closed,” in the early part of this clause, necessarily limit the meaning of the later words, “as the laws of Tennessee direct,” and that the testator meant to say that, after all the debts and obligations had been paid, then the remainder should be divided between the wife and daughter, under Subsection 1, § 3278, of the M. & V. Code. If the words of that clause were taken literally, then we would have a clause where the testator, notwithstanding the fact that he had clearly indicated in the other clauses of his will other objects 'of his bounty, yet, by this clause defeated-these objects; for, in this clause, he directs, not the remainder of his personal estate that is left after the settlement of his debts and the payment of the other legacies “to -be settled and closed up,” but his “personal estate” .as a whole, and its proceeds divided between his wife and daughter. But this, however, would be to stick in the bark, and adopt a construction the result of which would be to defeat the clear intent of the testator.
It is equally apparent to us that the argument of counsel for the executor places an unwarranted’
Again, if the testator had intended to cut off his wife from all the benefit that the general laws would' give to her as his widow, and direct an equal division of his personal estate between his daughter and widow, the simplest way to have provided for this w'ould have been for him to say in his will that, after' paying the debts, .legacies, etc., the proceeds of his personal estate should be divided equally between the two. This, or some equivalent phrase, would have avoided all confusion, and should have fixed his intention beyond debate. Using, however, the phraseology in question, it seems difficult to resist the conclusion that it was adopted with an understanding of its import, and the purpose of giving his wife the benefit of the best the law could do
In addition, it will he noticed that the testator in this clause uses the plural noun ‘£ laws ’ ’ — the division of the personal estate to he made ‘ ‘ as the laws of Tennessee direct.” By the use of this word he indicates that the division between the “wife and daughter” is to be made with regard, not to one law, hut to all the subsisting laws of the State regulating the division of such an estate between a widow and her child or children whenever intestacy has occurred, subject alone to the condition indicated in the conclusion of the last paragraph above.
The result is, that we hold that Mrs. Morris is, first, entitled to have set apart to her the articles of personal property exempted under the statute. Second, a year’s allowance out pf the personal estate. Third, to one half of what may remain unexhausted of the fund set apart for the support of Mary Ann Morris at the death of the beneficiary; and, fourth, to one half of the proceeds of the personal estate, after the $5,000 above referred to is set apart and the moneyed legacies are paid. The Chancellor’s decree holding otherwise is reversed.
As to the realty, the Chancellor allowed the widow dower, but declined to give her homestead. Without extending this discussion, it is sufficient to say, that we find that she was entitled to homestead as well as dower, and in so far as the Chan
In the hill the executor alleges that he has made perfect inventories of the personal estate. This allegation is denied in the answer. In this condition of the record, and without any proof on this issue, the Chancellor held with complainant. This was error. Bank v. Jefferson, 8 Pickle, 537.
The cause will be remanded to the Chancery Court for the purpose of carrying out the directions of the decree, to be entered in accordance with this opinion.
The costs of this Court, and the Court below, wdll be paid out of the funds of the estate.