Butler v. Moore

• Decision Date: 24 January 1884
• Docket Number: 11,054
• Citation: 94 Ind. 359
• Parties: Butler, Guardian, v. Moore, Executor, et al
• Court: Indiana Supreme Court

94 Ind. 359

Butler, Guardian, v. Moore, Executor, et al

No. 11,054

Supreme Court of Indiana

January 24, 1884

Petition for a Rehearing Overruled April 2, 1884.

From the Decatur Circuit Court.

W. A Moore, J. K. Ewing and C. Ewing, for appellant.

J. D Miller and F. E. Gavin, for appellees.

OPINION

Franklin C.

This is an appeal from the judgment of the Decatur Circuit Court sustaining a demurrer to a complaint filed by the appellant against the appellees.

The substantial allegations of the complaint are as follows: The appellant is the guardian of Kitty D. Moore, a grandchild of Climpson B. Moore, deceased, and one of the only two children of Cyrus M. Moore, deceased; that Cyrus M. died before his father, the said Climpson B., and left as his only children and heirs the defendant Douglass C. and the plaintiff's ward, Kitty D. Moore; that on the 19th day of September, 1882, said Climpson B. died testate; that his will was duly probated, and that he left an estate of $ 5,000; that the executor and Douglass C. claim that the said Kitty D. is excluded by the terms of the will from any part of the estate of said Climpson B.

The material parts of the will important to this case are as follows:

"Item 2d. I give and bequeath to my daughter, Rachel Hawkins, the sum of four hundred dollars as a specific legacy, in consideration of services rendered by her for me.

"Item 3d. The remainder of my estate, both real and personal, I give, bequeath and devise to the following persons, to wit: My daughter Ann D. O'Byrne, the children and heirs of my daughter Elizabeth Black, my daughter Leahasenth Kennedy, my son Levi W. Moore, my grandson Douglass C. Moore (son of Cyrus M. Moore, deceased), my son Joseph L. Moore, my daughter Mary M. Powner, my daughter Rachel Hawkins, and my son Andrew Moore, the same to be divided into nine equal shares, one-ninth to each living child, and one-ninth to the children of each of my children who is deceased."

The will is made a part of the complaint.

The appellant prays a construction of the will, and that the court direct the executor to pay the guardian one-half of one-ninth of the estate of said Climpson B., for the benefit of his said ward. A demurrer was sustained to the complaint, and judgment rendered for appellees for costs. The sustaining of said demurrer has been assigned as error.

The appellant insists that under the provisions of the will, his ward Kitty D. Moore is entitled, equally with Douglass C., to a share of the estate. And it is insisted by appellees that the naming of Douglass C. and omitting to name Kitty D. excludes her from any share in the estate, and that the subsequent provision, that one-ninth shall go to the children of Cyrus M., must be limited to the one named, Douglass C., and can not include Kitty D.

Courts have adopted some general rules in relation to the construction of wills, to which we first call attention:

1. The intention of the testator is, where it can be ascertained, the governing criterion in the construction of wills. Hinds v. Hinds, 85 Ind. 312.

2. Where there are provisions in a will which are conflicting and inconsistent, that which is posterior in local position must be taken to denote the last intention of the testator. Evans v. Hudson, 6 Ind. 293; Holdefer v. Teifel, 51 Ind. 343; 2 Jarm. Wills, (5 Am. ed.) 472.

3. Equality is favored in the disposition of estates. Heirs at law are not to be disinherited by conjecture, but only by express words or necessary implication. Howard v. American, etc., Society, 49 Me. 288; Wright v. Hicks, 12 Ga. 155; Hitchcock v. Hitchcock, 35 Pa. 393; Scott v. Guernsey, 48 N.Y. 106.

4. When a will is open to two constructions, and one will give effect to the whole instrument, while the other will destroy a part, the former must be adopted. Pruden v. Pruden, 14 Ohio St. 251.

5. Omitted words will be supplied where it is evident the testator has not expressed himself as he intended. 1 Redfield Wills, p. 453, et seq.

Applying these rules of construction to the will under consideration and taking the whole will together, the intention of the testator appears to have been to make special provision by his will for his daughter Rachel Hawkins, as expressed in the second item of the will, by giving her a special legacy over and above the other heirs for the reason and consideration of services which she had rendered for him. Otherwise there is no reason expressed or implied for the making of a will. No fact is stated to show any intention that all of the testator's heirs should not take all...