Blessing v. Johnston

• Decision Date: 16 June 1933
• Citation: 249 Ky. 777,61 S.W.2d 635
• Parties: BLESSING et al. v. JOHNSTON et al.
• Court: Kentucky Court of Appeals

61 S.W.2d 635

249 Ky. 777

BLESSING et al. v. JOHNSTON et al.

Court of Appeals of Kentucky

June 16, 1933

Appeal from Circuit Court, Jefferson County, Chancery Branch, First Division.

Action by Pauline Blessing and others against Mayme Johnston and others. From an adverse judgment, plaintiffs appeal.

Judgment reversed, with directions.

Morris B. Gifford and Steinfeld & Steinfeld, all of Louisville, for appellants.

Selligman Selligman & Goldsmith, of Louisville, for appellee Mayme Johnston.

Booth &amp Conner, of Louisville, for appellee administrator and his surety.

THOMAS Justice.

Ralph D. Johnston died testate, and a resident of the city of Louisville, Ky. on January 5, 1929, leaving the appellee Mayme Johnston as his surviving widow, and the appellants Pauline Blessing and Lillian Ackerman, as his only surviving children and heirs at law. Their mother was the decedent's first wife, who died many years ago. The two daughters were married, and they and their husbands were and are nonresidents of Kentucky. Prior to his death, Ralph D Johnston executed his will, in the first clause of which he directed his debts and funeral expenses to be paid. The second and third ones bequeathed to his two daughters $1 each, and the fourth clause said: "I give, devise and bequeath to my beloved wife, Mamie Johnston, all the remainder and residue of my estate both real and personal to be hers absolutely until her death and the remainder then to go to Lillian Ackerman and Pauline Blessing in equal shares." The other two clauses (fifth and sixth) appointed an executor of his will with prescribed powers. The estate of testator consisted entirely of personal property, mostly stock or interest owned by him in a Louisville development company, and its aggregate was about $14,000. He also carried life insurance to the amount of about $1,800 or $2,000, payable to his wife as beneficiary.

The nominated executor of the will declined to qualify, and appellee James E. Costello qualified as administrator with the will annexed, and executed bond with the appellee National Surety Company as his surety. After his qualification, and following his adjustment of the affairs of the estate so as to enable him to do so, he turned over to the widow and appellee, Mayme Johnston (who in the meantime had become a nonresident of Kentucky), the sum of $7,000, and following that the two daughters, as plaintiffs below, and appellees here, filed this action in the Jefferson circuit court against the administrator with the will annexed and his surety, and also against the widow (who later entered her appearance), seeking a construction of the above inserted clause 4 of testator's will, and averring that it devised and bequeathed to the widow only a bare life estate in the testator's property embraced by it, and that the administrator had violated his trust by turning over to her the above amount of the assets of the estate, and especially so in the absence of a bond from her for its forthcoming at her death to be distributed to plaintiffs in accordance with their interpretation of the will. They prayed for appropriate relief.

Defensive pleadings by both the administrator and Mrs. Johnston disputed the interpretation of the will so made by plaintiffs in their petition, and urged counter constructions of clause 4 of the will, to the effect (a) that it gave to the widow an absolute estate in the property embraced by it, but if mistaken in that, then (b) it gave to her a life estate with the right to the income therefrom, with the additional one to encroach upon the corpus if necessary to maintain her in the manner that the testator intended. Following pleadings and motions made the issues, and upon final submission, the court adopted interpretation (b) advanced by defendants, and fixed the amount that the administrator should pay to the widow at the sum of $200 per month, and which, necessarily, called for an encroachment upon the corpus of the devised estate, since its income could not possibly amount to that much, and from that judgment plaintiffs prosecute this appeal.

The learned trial judge wrote an opinion, and in it he points out what he terms two conflicting lines of opinions of this court in the interpretation of language and clauses in wills that he concludes are similar in every respect to the one involved in this case; and it must be admitted that some of the cases referred to in that opinion furnish some foundation for the court's conclusion. However, an examination of the cases as arranged by the court on either side of the proposition will reveal that this court was endeavoring in each instance to follow the fundamental and basic rule for the interpretation of wills, to the effect that the intention of the testator, if not inhibited by law, shall always prevail. That rule, as so broadly stated, is without exception in this jurisdiction, and the same is true in other jurisdictions of this country so far as we have been able to discover. It is so universally true that we deem it entirely unnecessary to attach supporting cases and texts.

In ascertaining that intention, the first consideration is the specific language employed by the testator in expressing his desires and in determining what he meant by the employment of the particular word or phrase or clause involved. Courts not only have the right, but it is their duty, to look to and consider the surrounding circumstances of the testator; the amount of his property; the purpose he intended to accomplish by his devise; the cordial or other relationship existing between him and the devisee; the extent of his education and familiarity with the technical or other terms that he employed, and to other considerations having a tendency to throw light upon his sought after intention. It will thus be seen that the rule for the ascertaining of testator's intention or the means and method by which it is obtained are variable and depend upon no absolute and fixed standard, unless it should happen to be that the language to be construed has a fixed and universal meaning, and of such common understanding as to exclude the hypothesis that another and distinct meaning was intended.

In such supposed case there is but one alternative for the court to adopt, and which is, the enforcement of the intention that the testator so plainly expressed. If every will should be expressed in the same language, and that language had but one universally understood meaning, then there would be no occasion for courts of last resort to arrive at seemingly contradictory conclusions in the interpretation of two wills containing the same language. However, we would not be understood as contending that the members of this court, or any other appellate court, are infallible and never render divergent opinions. The members, being human, are liable to err and to render contradictory opinions upon exactly the same state of facts in every particular, and for which reason it may be true that some of the opinions cited in briefs, and in the trial court's opinion, can be so classified, and which, if true, renders it necessary for one of them to be followed and the other repudiated in later cases, depending upon which one is deemed to be more in accord with the correct conclusion in the light of the considerations above enumerated.

It is correctly stated in briefs, as well as in the court's opinion, that this court, in the interpretation of the various wills brought before it for construction, has recognized and declared three sorts of estates given by the testator to the first taker in a particular clause of his will, and which are: (c) An absolute estate; (d) a bare life estate with no interest in the life tenant in its corpus, but only the right to appropriate during his life the income therefrom; and (e) an estate of somewhat of a mixed nature whereby the first taker is entitled to encroach upon the corpus if it be necessary to carry out the intention of the testator, and the apparent contradictions above alluded to arise from the cataloging of a particular case in one of the other of such classes, and which, we repeat, is due to our interpretation of the particular...