Achelis v. Musgrove

• Decision Date: 23 October 1924
• Docket Number: 6 Div. 42.
• Citation: 101 So. 670,212 Ala. 47
• Parties: ACHELIS v. MUSGROVE ET AL.
• Court: Alabama Supreme Court

101 So. 670

212 Ala. 47

ACHELIS v. MUSGROVE ET AL.

6 Div. 42.

Supreme Court of Alabama

October 23, 1924

Appeal from Circuit Court, Walker County; J. J. Curtis, Judge.

Bill in equity by Louise Achelis against C. R. Musgrove and others. From a decree dismissing the bill, complainant appeals. Affirmed.

A. F Fite, of Jasper, for appellant.

Bankhead & Bankhead, of Jasper, for appellees.

SOMERVILLE J.

The sole issue in this case is whether the description of the lands devised by the testatrix to C. R. Musgrove was intended to, and does, include all the lands belonging to the testatrix not otherwise specially devised. Complainant's contention is that the devise of "my home place including my dwelling and the land lying contiguous thereto which I own," must be restricted in its application to the premises immediately contiguous to the dwelling house and inclosed with it under a common fence. The argument, in brief, is that the progress of events has destroyed the former unity of the Musgrove property, and that for some time past it has been divided into a "home place," lying to the north of the railroads, and to the east of Alabama avenue (a platted but unopened street), and a farm lying to the south of the railroads, and a nondescript tract west of Alabama avenue, separated by a fence from the "home place" proper.

Counsel for complainant (appellant here) lays much stress upon the operation and effect of the plattings shown by maps offered in evidence, upon the use of small portions of the property on the west, at various times, for the site of an ice factory, and other purposes dissociated from "home" uses, and upon the fact that the testatrix made one or more deeds to small tracts on the northern side in which she recognized, by the descriptive terms used, the plattings of the Jasper maps, as she did also by descriptions used in the will. In view of these conditions, it is earnestly insisted that the descriptive words in question could not have been intended to apply, or at least cannot be reasonably construed to apply, to those portions of the Musgrove property lying outside of the inclosure surrounding the homestead proper, and that, those outlying portions, not having been otherwise disposed of by the testatrix in the will, as to them she died intestate, and they pass by descent to her heirs at law.

In ascertaining the testator's intent from the language of the will, the court will place itself, as nearly as possible, in the testator's position, by considering the surrounding circumstances, the condition of his estate and of the members of his family, and his social relations with them. Castleberry v. Stringer, 176 Ala. 250, 57 So. 849; 28 R. C. L. 270, 273,§ 244.

In the construction of wills, heirs and heirship are favored by the courts, but this principle is applicable only in cases where the fact of a devise or gift is doubtful under the terms of the will, as where it rests upon implication merely. Schackleford v. Washburn, 180 Ala. 168, 60 So. 318, 43 L. R. A. (N. S.) 1195; Wolffe v. Loeb, 98 Ala. 426, 13 So. 744. It is of no value here, where the ambiguity is in the descriptive phrase of a clear devise, especially since every heir at law is referred to by name, and the property each is to take is specifically stated. And it must be noted that, in making the nominal gift of $1 to the complainant, her granddaughter Louise Musgrove, the testatrix evinced an unmistakable intention to deliberately exclude her from sharing in the estate. McDermott v. Scully, 91 Conn. 45, 98 A. 350, Ann. Cas. 1917E, 407.

On the other hand, it is a well-settled rule that- "In the construction of doubtful clauses in a will, that interpretation is to be adopted if possible which avoids a partial intestacy, unless it clearly appears that the testator intended to die intestate as to part of his property." 28 R. C. L. 227, § 189, citing numerous cases.

But these, and all other rules of construction, are subordinate to the cardinal rule that the intention of the testator must be ascertained and given effect. They are useful only in aid, not in contravention, of that controlling purpose. Unquestionably, the descriptive language here in question presents a latent ambiguity, which may be removed by appropriate parol evidence showing the circumstances which may illustrate the sense in which the testatrix used it, and thereby give to it a certain meaning and application. Summers v. Summers, 198 Ala. 30, 32, 73 So. 401, L. R. A. 1917C, 597; 28 R. C. L. 270, § 244.

It is a general rule, of course, that parol evidence of a testator's declarations, whether made before or after the execution of a will, are not admissible to show an intention not deducible from the terms of the will, or in contradiction or alteration of its plain and unambiguous language. 40 Cyc. 1433, and cases cited in note 28; 28 R. C L. 280, § 251; Simmons v. Simmons, 73 Ala. 235; Dozier v. Dozier, 201 Ala. 174, 77 So. 700. But it is well settled that in all cases of latent ambiguity in the terms of a will, in their application to persons or property-

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