Baker v. Hendricks

• Decision Date: 27 February 1941
• Docket Number: 6 Div. 769.
• Citation: 240 Ala. 630,200 So. 615
• Parties: BAKER ET AL. v. HENDRICKS.
• Court: Alabama Supreme Court

200 So. 615

240 Ala. 630

BAKER ET AL. v. HENDRICKS.

6 Div. 769.

Supreme Court of Alabama

February 27, 1941

Appeal from Circuit Court, Blount County; J. H. Disque, Jr., Judge.

Bill in equity by Mrs. Willis C. Hendricks, as executrix of the will of Samuel M. Hendricks, deceased, and individually, against Romania Baker and others, for construction or reformation of the will. From a decree overruling a demurrer to the bill respondents appeal.

Reversed and remanded.

J. T Johnson, of Oneonta, and St. John & St. John, of Cullman, for appellants.

P. A Nash, of Oneonta, for appellee.

BOULDIN Justice.

Appellee filed her bill in equity praying for a construction of the will of Samuel M. Hendricks, her deceased husband. There was alternate prayer for reformation. Respondents, heirs of decedent, filed demurrers, which were overruled. The appeal is from this decree.

The pertinent provisions of the will appear in the report of the case.

The special matter to which the bill is addressed appears in the fourth item of the will devising to the wife "my undivided one-half interest in and to lots 153 to 157, both inclusive, in Block 27," &c.

The bill alleges it was the intention of the testator to devise all his title and interest in this property to the wife; that in fact he owned the entire title and interest therein; and the will should be construed to pass the complete title, or be reformed to like effect. An alternate averment of the bill is that the testator was of opinion that the title to this property was in him and his wife jointly, and intended to devise all his interest therein to the wife.

The demurrers challenged the bill on the ground that the will is clear and unambiguous, defines with certainty the interest devised, an undivided half interest, that such interest can not be enlarged to a complete title by construction.

Appellee, among other things, relies upon the strong presumption against partial intestacy indulged in the construction of wills.

In this case we need not look to such presumption. The first paragraph of the will expressly declares a purpose to devise and bequeath all the property, real, personal, and mixed owned by the testator at the time of his death in "the manner following." The devise of "my undivided one-half interest," following in item four may be taken to clearly indicate an intent to devise all his title and interest in that property.

But with equal certainty he defines his interest as an undivided half, and so devises same.

There is nothing doubtful or ambiguous as to the interest intended to be devised. That the testator believed he only owned an undivided half interest confirms such intent. What ...