Bacon v. Nichols

• Decision Date: 06 December 1909
• Citation: 105 P. 1082,47 Colo. 31
• Parties: BACON et al. v. NICHOLS et al.
• Court: Colorado Supreme Court

105 P. 1082

47 Colo. 31

BACON et al. v. NICHOLS et al.

Supreme Court of Colorado, En Banc.

December 6, 1909

Appeal from District Court, El Paso County; Louis W. Cunningham Judge.

Petition by Mary A. Bacon and another for the construction of the will of John H. Bacon, deceased, against Mrs. Eloise Powell Nichols and other beneficiaries under the will. From a judgment of the district court affirming a judgment of the county court, petitioners appeal. Affirmed.

J. C. Helm and J. R. Dixon, for appellants.

Chinn and Strickler, for appellees.

HILL J.

John H Bacon executed a will, which, in the disposition of his property, was as follows:

'First. I give and bequeath to Mrs. Eloise Powell Nichols, the only child of my sister Catherine M. Powell, the sum of five thousand dollars--$5,000.00.

'Second. I give and bequeath to Frank E. Hodgkin, the only child of my deceased sister Mary E. Hodgkin, the sum of five thousand dollars--$5,000.00.

'Third. I give and bequeath to Katie Bacon McKinney, the only child of my deceased brother, Frederick W. Bacon, the sum of five thousand dollars--$5,000.00.

'Fourth. I give and bequeath to Charles A. McKinney, husband of my niece Kate B. McKinney, my open faced gold watch and chain.

'Fifth. I give and bequeath to my sister Aurelia I. Magill, the sum of twenty-five dollars a month during her life.

'Sixth. I give and bequeath to Mrs. Augusta Bacon, widow of my deceased brother Frederick, the sum of twelve dollars and fifty cents a month during her lifetime.

'Seventh. I give and bequeath to Mary Weaver, (daughter of S. P. Weaver), who was named after my wife, the sum of one hundred dollars.

'Eighth. I give and bequeath to Hobart F. Blythe, (son of B. F. Blythe, of Diller, Nebraska), the sum of one hundred dollars.

'Ninth. Having made a warrantee deed to my son William Henry Bacon, for lots seventeen (17), eighteen (18), nineteen (19) and twenty (20) in block eighty-one (81) situated in Colo. Springs, Colo. I also give and bequeath to my said son, my gold time watch and all my diamonds.

'Tenth. I give to my only and beloved wife, Mary A. Bacon, all my real estate of whatever kind I may have, also all my personal property of every description, all monies, notes, mortgages, bonds or stocks, and she is to have the free use, and restriction, possession, control and benefits of the same.

'Eleventh. Should my wife die before I do, then the said property will become the property of my son, William Henry Bacon.'

The testator nominated his wife and son as the executors of the will. Within a few months after the will was executed Mr. Bacon died. The will was duly admitted to probate. Thereafter, the wife and son filed a petition in the county court of El Paso county, for a construction of the will, whereby it was sought to have determined the rights of the respective legatees and devisees thereunder. To this proceeding the other beneficiaries were made parties. The county court held that it was not the intention of the deceased, by paragraph 10 of his will, to revoke or set aside any of the bequests mentioned in the preceding paragraphs, and that by paragraph 10 Mrs. Bacon was entitled to receive only that portion of the estate of the testator remaining after the payment of the bequests set out in the preceding paragraphs of his will. From this judgment the petitioners appealed to the district court, where a similar judgment was entered, from which this appeal is taken, and two questions are urged for determination: 'First. Is there an irreconcilable repugnancy between paragraph ten of the will and the preceding paragraphs thereof, and, if so, what is the effect? Incidental to which is the question: Was said clause in said deed admissible for any purpose? Second. Is the will void for uncertainty?'

In the construction of all wills the intention of the testator is the governing principle--the point to which all explanation should be directed. The circumstances of each individual case vary so much from those of most other cases that it is difficult to determine from the explanation or construction of one will what would control in the construction of another; and although there may be general principles tending to assist the courts in determining the intention of the testator, yet they can be but advisory, and not controlling. Such rules are to be used as helps toward reaching the intention of the testator, 'making them our servants rather than our masters.' 1 Redfield on Wills, 420. For, as stated in the case of Elyton Land Co. v. McElrath, 53 F. 763, 3 C.C.A. 649, 'It is in many cases impossible to determine, beyond the possibility of a doubt, what the intention of the testator was; and all that can be done is to ascertain, from all the facts and circumstances surrounding him, his property, and those to whom it is left, and the language of the will, what probably was intended; * * * that has been the controlling principle.'

The first question necessary to be determined is, Was said clause in said deed admissible for any purpose? We answer in the affirmative in a case of this kind, where there is a contention over the disposition of property claimed, under different paragraphs of a will, which, when taken separately, create an apparent irreconcilable repugnancy between them. The will refers to a deed (as explanatory in part and as a reason for the other dispositions made in the will) transferring certain property, and, if necessary, it might be read into the will as a part thereof. A will may be construed in connection with another instrument in writing to which it refers to aid in ascertaining the intention of the testator. Jackson v. Babcock, 12 Johns. (N.Y.) 389; Capp v. Brunner, 132 Pa. 417, 20 A. 683; Ford v. Ford, 70 Wis. 19, 33 N.W. 188, 5 Am.St.Rep. 117; Hall et al. v. Hill, McLean & Co., 6 La. Ann. 745. We think it admissible for the further reason as throwing light upon the property which the testator may have thought he was disposing of, or attempting to dispose of, as held by this court in the case of Nusly et al. v. Curtis et al., 36 Colo. 464, 85 P. 846, 7 L.R.A. (N. S.) 592, 118 Am.St.Rep. 113. 'The question is one of intent, to be gathered from the language used in creating it, in the light of the circumstances of the testator and the property which he is disposing of in his will.'

In this case it is shown that the value of the property disposed of was between $27,000 and $32,000, exclusive of any reference to the reservation contained in this deed, which was a deed executed by John H. Bacon and Mary A. Bacon, his wife, to their son, William H. Bacon, about six months prior to the death of the testator, for the property therein named of the conceded value of $100,000, with a rental value of at least $600 per month over and above the cost of keeping the same in repair. The clause referred to in this deed reads as follows: 'The said grantors expressly reserve the possession, use and rents and profits of said described premises for and during the natural lives of the said grantors and for and during the natural life of the survivor (of either of them).' While the deed was signed by both Mr. and Mrs. Bacon, it is stipulated that Mrs. Bacon had no interest in the property prior to the execution of the deed. The reservation in the deed was evidently in the mind of the testator at the time of the execution of his will, and was properly admitted as having a bearing upon the question of the properties the testator may have understood he was disposing of under the provisions of his will, in which case, in the construction of ambiguous or conflicting provisions, the situation of the parties may be very properly taken into view. Schouler on Wills, §§ 579-580; Smith v. Bell, 6 Pet. 68, 8 L.Ed. 322; Nichols v. Boswell et al., 103 Mo. 151, 15 S.W. 343; Day v. Wallace, 144 Ill. 256, 33 N.E. 185, 36 Am.St.Rep. 424; Hunt v. White, 24 Tex. 643.

The principal contention is that as there is no demonstrative or specific legacies mentioned other than in paragraphs 4 and 9 (about which it is admitted there is no dispute), and as the other legacies are general, in that no specific property is charged with their payment and no particular fund is pointed out for their satisfaction, where a general legacy is followed by a general legacy or bequest of the testator for the same property, or part of it, then an invincible or irreconcilable repugnancy arises, in which case it is claimed that the latter or two inconsistent provisions must prevail as evidence of the final intention of the testator. This contention seems to have the support of the great weight of authority, but it is conceded the rule is technical, and by some authorities has been designated a harsh one, and is only adopted where all other rules fail in arriving at the intention of the testator; being upon the theory that the last provision can be considered as evidence of the final intent of the testator, but this rule has not been universally adopted. For instance, in the case of Day v Wallace, 144 Ill. 256, 33 N.E. 185, 36 Am.St.Rep. 424, it was held that where a testator in the several parts of his will devised the same land to different persons in fee, and there is nothing in the will to show that he intended the last-named devisee to take to the exclusion of the first, the two devisees will take the land concurrently as tenants in common, and in which case it was held that there was not such a clear and irreconcilable repugnancy between the two devises as to make the later one abrogate the prior one; and, after conceding there was a conflict of authorities, the court states: 'Taking into consideration all the facts of this case proper to be considered, it is manifest that whatever presumption might otherwise arise in favor...