Bell v. Killian

• Decision Date: 21 March 1957
• Docket Number: 7 Div. 223
• Citation: 93 So.2d 769,266 Ala. 12
• Parties: A. L. BELL, as Adm'r, etc., et al. v. G. W. KILLIAN, as Adm'r, etc., et al.
• Court: Alabama Supreme Court

Page 769

93 So.2d 769

266 Ala. 12

A. L. BELL, as Adm'r, etc., et al. v. G. W. KILLIAN, as Adm'r, etc., et al.

7 Div. 223.

Supreme Court of Alabama.

March 21, 1957.

Scott, Dawson & Scott, Fort Payne, for appellants.

John B. Isbell, L. L. Crawford, W. M. Beck and W. W. Watson, Fort Payne, for appellees.

GOODWYN, Justice.

This is an appeal by respondents below from a final decree of the circuit court of DeKalb County, in equity, rendered in a suit brought by appellees, residuary legatees under the will of H. H. Killian, deceased, for a construction of said will and incidental relief. In the first appeal of this case, the decree of the trial court overruling demurrer to the bill was sustained. Bell v. Killian, 256 Ala. 245, 53 So.2d 604.

The provisions of the will, executed in 1909, which are pertinent to a decision of the case are as follows:

'3. I give and bequeath unto may beloved wife Roxiene Killian all the property, real, personal and mixed, of every description or kind whatever, that I may own or be possessed of in this State or any other State in the United States, at the time of my death.

'4. I nominate and appoint my said Roxiene Killian as the executrix of this my last will and testament: And I hereby expressly relieve and exempt her from executing any bond for the performance of her duties as said executrix. And I also expressly relieve and exempt her from reporting or accounting to any Probate Court or other Courts having jurisdiction of estates and wills for her acts of administration under this will, or her transactions thereunder.

'5. I will and direct that my said wife as said executrix shall hold, manage and control all the assets of my estate, real and personal. My said executrix is hereby authorized and empowered to use said estate both real and personal in such manner as she may deem fit and proper for her maintenance, well being, comfort and support.

'6. I authorize and empower the executrix of my said estate, to loan the assets of my estate, or to invest them either in real estate, or in bonds, or in other property as she, in her judgment may deem right and proper. I give her power and authority to collect the same, and all other matters due my estate, and receipt for the same, and make all contracts relative to my estate necessary to carry out this will.

'7. I hereby authorize and empower my said executrix to sell all real estate and personal property I may own at the time of my death on such terms as she may deem best, and to make proper deeds of conveyance thereto as said executrix and to collect for same by suit or otherwise and all mentioned in this item she may do without any order of any court and without further authority and power than is given hereby.

'8. I will that in the event there remains any of my said estate at the death of my beloved wife Roxiene Killian after paying funeral expenses as provided for myself--for her--, then in that event I will that whatever property of my said estate remaining on hand at her death, shall go to my brothers Bailey Killian and Demoville S. Killian and their heirs at law.'

On the death of H. H. Killian in 1945 his wife Roxiene Killian was duly appointed as executrix. At that time the estate consisted of several tracts of land valued in excess of $50,000 and about $9,000 in bank deposits.

About two years after Mr. Killian's death, Mrs. Killian married A. L. Bell, one of the respondents below and an appellant here. In January, 1950, she died intestate. Her husband was appointed administrator of her estate.

The ultimate effect of the evidence in the case at bar was to show that at the time of Mrs. Bell's death none of the assets of the Killian estate remained in their original form. The uncontroverted evidence showed that while serving as executrix she sould all of the estate's land and transferred the bank deposits of the estate into her personal account. As concluded by the trial court, there was a general commingling of the funds of the estate with Mrs. Bell's personal funds. The evidence further showed that Mrs. Bell purchased a farm with a part of the proceeds of the Killiam estate, with herself and A. L. Bell as joint grantees, that another portion of the funds of the estate was used to purchase government bonds in which Mrs. Bell and other parties were designated as coowners; and that the remainder of the funds of the Killian estate was placed in a joint bank account will Mrs. Bell and A. L. Bell as joint depositors. As a result of Mrs. Bell's actions there were no funds or property left in the Killian estate at the time of her death.

The complainants are Bailey Killian and the heirs of Demoville S. Killian. Their bill alleges that under the will off H. H. Killian the widow's right was limited to the use of so much of the property of the estate as was reasonably necessary for her maintenance, well-being, comfort and support, with a remainder over to the two named residuary legatees or their heirs; that the property of the testator's estate not so used, but fraudulently or improperly converted to the use of the widow and her second husband, Bell, was rightfully owned by the residuary legatees, subject to the continued administration of testator's estate until all matters pertaining thereto had been finally and properly concluded.

The first problem to be resolved is the proper construction of the Killian will. It is apparent that it is ambiguous in its provisions, and that judicial construction is necessary.

At the outset, it should be fixed firmly in mind that the ultimate purpose and duty of the courts in construing any will is to ascertain the intention of the testator and give it effect to the extent which the law will permit. Patterson v. First National Bank of Mobile, 261 Ala. 601, 603, 75 So.2d 471; Watters v. First National Bank of Mobile, 233 Ala. 227, 234, 171 So. 280. To this end the court will put itself as far as possible in the testator's position by taking into consideration the circumstances surrounding him at the time of the execution of the will. Patterson v. First National Bank of Mobile, supra; Adams v. Jeffcoat, 252 Ala. 501, 503, 41 So.2d 183; Smith v. Nelson, 249 Ala. 51, 55, 29 So.2d 335; George v. Widemire, 242 Ala. 579, 7 So.2d 269. Further, the court will consider the will itself as a whole, giving effect to each of its provisions, if possible, so as to form one consistent scheme effectuating the intention of the testator. Watters v. First National Bank of Mobile, supra; Blackwell v. Burketts, 251 Ala. 233, 235, 36 So.2d 326.

The trial court construed the will as follows:

'The will in this case is ambiguous, but from the study of the records in this case, in light of the authorities as above cited, the court is clearly of the opinion that under this will Mrs. Killian, the widow, became a life tenant with power of disposition of so much of the property of the estate as was reasonably necessary for her maintenance, well-being, comfort, and support, with remainder over to the two named residuary legatees or their heirs. The court is convinced beyond any doubt that Mr. Killian did not convey and did not intend to convey to his wife a fee simple title to the property involved.'

Appellants insist that the trial court erred in its construction of the will. Their theory of construction is as follows: Paragraph 3 of the will creates an absolute fee in the wife, and subsequent provisions giving the wife the power to control, manage, and sell the assets of the estate merely affirm the testator's intention to give her a clear title to all of his property. Appellants contend that the attempted residuary legacy in paragraph 8 is so vague and uncertain that it cannot cut down the clear gift of a fee to the wife contained in paragraph 3. It is insisted that the following canon must govern our construction of the will: 'An absolute estate created in clear and decisive terms, cannot be taken away or cut down to a lesser estate or interest by subsequent words, which are not as clear and decisive.' Schowalter v. Schowalter, 217 Ala. 418, 420, 116 So. 116; Hatcher v. Rice, 213 Ala. 676, 678, 105 So. 881; Ralls v. Johnson, 200 Ala. 178, 180, 75 So. 926; O'Connell v. O'Connell, 196 Ala. 224, 229, 72 So. 81.

While this is a recognized principle in the construction of wills, we do not think it is applicable in construing the will before us for the reason that paragraph 3, does not create an absolute fee in clear and decisive terms. The provision reads:

'3. I give and bequeath unto my beloved wife Roxiene Killian all the property, real, personal and mixed, of every description or kind whatever, that I may own or be possessed of in this State or any other State in the United States, at the time of my death.'

Under our cases, a general devise of this nature which fails to specifically define the extent of the estate created, does not necessarily import an absolute fee if subsequent provisions of the will indicate that the testator intended a lesser estate. Patterson v. First National Bank of Mobile, supra; Higdon v. Higdon, 243 Ala. 571, 574, 11 So.2d 140; Schowalter v. Schowalter, supra; Hatcher v. Rice, supra.

The applicable rule is thus stated in Patterson v. First National Bank, supra, 261 Ala. page 607, 75 So.2d at page 475.

'It is well settled that where a will does not expressly define the estate of the first taker, a devise over after his death is definitive of his estate and will be given effect in keeping with the intention of the testator, if not unlawful. Higdon v. Higdon, 243 Ala. 571(6), 11 So.2d 140.'

The reasoning which supports this rule is sound. As with all canons of construction the purpose of the rule is merely to guide the courts in ascertaining the intention of the testator. In order to determine this intent it is obvious that the will must be considered as a whole. Therefore, when the testator makes a general devise without defining the extent of the estate which he wishes to create, and h...