Wynne v. Walthall

37 Ala. 37 | Ala. | 1860

A. J. WALKER, C. J.

The prime object of search in the construction of wills, is the testator’s intention, which,. if legal, is the law of the instrument. To assist in ascertaining the intention, Various rules have been framed, one of which, being a suggestion of the plainest common sense, is, “that all the parts are to be construed in relation to each other, and so as, if possible, to form one consistent' whole.” — 2 Jar. on Wills, 741, § 7. The import of other parts of the will, in this case, touching the same subject' with the second clause, must he determined, in order that wo may find, if possible, a construction which will give • harmonious operation to each.,

The first is, obviously, the leading and main clause of-the will, to which all the others are rather supplementary,, adding those more minute directions, which, on account* of its comprehensiveness^ could not be embraced in it. Tbe • first expresses the general testamentary purpose and plan. The others were designed, not materially to vary that plan, but to adapt the process oí executing the will to the condition of the family ; to give specific directions as to particulars necessarily omitted in the generality of the first clause, and to anticipate contingencies of death in the family. This general view of the - instrument, drawn from a careful reading and comparison of all its parts, will assist in the comprehension of any clause of doubtful construction.

The first clause makes a sweeping bequest of all the testator’s property, real and personal, to be eopially divided, “ share and share alike,” between his Wife and children; directs that it shall be kept together and managed by the executors, and that the shares of his children shall be set apart to them — the son’s, when he attains-majority, and the daughters’, when they attain majority, or - marry with the consent of their guardians. This clause, while it postpones the time of- reception, unquestionably-gives an equal vested interest to each one of tire testator’s-family in his entire property, and, of course, in - the -subsequently accruing profits thereof, unless it is controlled by other parts of the will.— Cox v. McKinney, 32 Ala. 461; High v. Worley, ib. 709 ; Thrasher v. Ingram, ib. 645 ; Stearns v. Weathers, 30 Ala. 712; Sevage v. Benham, 17 Ala. 119.

If the second clause receive such construction as to bestow -upon the widow as much as she desires of the profits of the estate, for her - exclusive use, it infringes the first clause, and, in part, • abrogates it; for the first clause clearly dis- . poses of all the- testator’s property in terms comprehending rthe income as 'well as the corpus, and requires perfect equality in the division of the entire property between the wife and children. The children were all of tender years *at the testator’s death ; and the payments to the widow, under the second clause, must necessarily be continued ¡•through a long peiiod of time. If the widow, during that period, after the payment of the debts, is to receive, at her ■option, the entire income of the estate, (which, in the interim, may duplicate itself,) in exclusion of her children, the entire spirit and intent of the first clause may be defeated, and the widow may stand, -at 'the -time of -the division, the recipient of more than double as much as the ’.'children, whom the testator designed to favor equally with herself in the-bestowment of his bounty.

Certainly, the first clause must ‘yield to tlie-second, if the conflict between them is irreconcilable. But tlie rule which sacrifices the former of two- contradictory clauses, is only applied after the failure of every other- attempt to give to both such a construction as will render them equally effective. — Pace v. Bonner, 21 Ala. 307; Miller v. Flournoy, 26 Ala. 724; Thrasher v. Ingram, 32 Ala. 645-660 ; 1 Jar. on Wills, 416; 2 ib. 741. We are to inquire, therefore, whether thorp is a possible harmonious construction for- tlie two.

Tlie first clause, as we have seen, on account of the generality of its scope, necessarily omitted the adaptation of the process of executing the will to the condition of the. testator’s family. . It made no provision fo r the maintenance of the widow, ox*.for the support and education of the children, still in -infant helplessness, during the protracted period antecedent to the division of the estate. The pro-servation of the family relation was so obvious, natural, and necessary a result of its condition, that an express provision upon the subject was not required; and the will must have been framed in reference to such result. That it was anticipated by the testator, is indicated in the direction of the fourth clause, for the purchase of a lot in the village of Newbern, and the erection upon it of a suitable house for the residence of the wife. It cannot be supposed, that the testator intended a residence procured by the executors at the expense of an estate conveyed by a previous clause to the wife and children in equal shares, should be occupied by the vwife alone, without the children, whose tender years made ‘them necessary subjects of maternal care. How -was it designed that this family of widow and children should be maintained after tlie discharge of the debts of the estate? The executors could not, consistently with the will,- maintain them, either out of the income of the estate, or the corpus of the property.; for in the second clause.there is-.an unm-is-takable direction, that so much of the income as the widow' ma.y leave shallbe invested, and the property itself is required: to be kept togetlier and divided at the appointed time. The widow lias certainly the means, of maintaining herself out of the profits- from, which she is- authorized to draw by the-second clause; but how are the children to be maintained and educated . It is impossible that the family should be kept' together, in a common residence, and that the widow should' maintain herself from the payments to hex out of the income, without a participation by the children. The- will in its operation, therefore, necessarily leads to the maintenance of the children out of the fund drawn by. the-widow from' the profits of the estate. This result,, so obvious, must' have been intended. It is inconceivable, that the testator, having in the second clause directed his attention to the operation of his will upon his family before they could receive their respective shares, should'have had regard to his wife alone, and intentionally left his children without a maintenance; and yet he has done that unnatural tiling, if the children are not to be maintained out of the profits drawn by the widow ; for he follows up the bequest out of the income in favor of the widow, with the direction for the investment of the residue.

For reasons similar to those from which we deduce the children’s right to a maintenance out of the income received by tlie widow,, we decide, that she must be restricted.as to tlie purpose for which she may draw upon.the income. The executors must pay over to her as she may desirebut the-payments must be for tlie purpose, and as the means of maintaining herself, and maintaining and educating the children. If the widow is- allowed to take the’whole of the income, whether desired for- those purposes or not, the spirit of equality as.between herself and children, which pervades the will, is disregarded; the equality of right declared by tlie first clause is infringed ; the widow, at the time appointed for the division, will receive her share accumulated from the income of the common property of herself and the children, and there will be no remainder of the; income to be invested, as contemplated by the last clause of the second item.

If the second clause be so construed as to give to the widow aright to take the profits to the-extent of her desire, for the purpose of maintaining herself, and ■maintaining and educating her children, it merely modifies the operation of the first clause to suit-the necessities and condition of the family before the division. Such was 'the effect which the testator designed it should have. He intended that the widow, in whom he confided, should, without stint or question, draw from the -profits for the purposes above stated, and that she should thus be saved from the annoyance and humiliation of having the means of maintaining herself and children measured out to her according to legal rules. He thus provided an equality of benefit for wife and children, consistent with the first clause, and with the spirit of the will, but dispensed with niceness in its adjustment.

In attaining this construction of the second clause, we do not vary the meaning of any of its words. We leave untouched the direction to pay over to the widow, from time to time, as she may require, such part of the annual profits as she may desire. We -only declare the purpose for which those payments are to be made. In doing this, we are justified by the rules already stated, and by the rule which requires that words should be supplied in order to effectuate the intention. — Capel v. McMillan, 8 Porter, 197; 1 Jar. on Wills, 427-437 ; 2 Wms. on Ex. 932, n. 1.

In the cases of Kerr v. Hill, (2 Des. Eq. 279,) and Crane v. Vanduyne, (1 Stockton’s Ch. 259,) a question of construction arose, which was almost identical with that which arises in this case as to the maintenance of the children ; and the decision was the same which we make in this case. See, also, McLeod v. McDonnell, 6 Ala. 238 ; Fitsgerald v. Jones, 1 Munf. 150.

For reasons which have been already indicated, we construe the fourth clause as investing the widow with the right to use the lot bought and dwelling-house built thereon íd pursuance of that clause, and the children have the right to share with her its enjoyment; but the house and lot are - the property of the estate, subject to distribution under-; the first clause.

The decree of the chancellor, is affirmed.