City Bank & Trust Co. v. McCaa

• Decision Date: 11 June 1925
• Docket Number: 7 Div. 573
• Citation: 105 So. 669,213 Ala. 579
• Parties: CITY BANK & TRUST CO. v. McCAA et al.
• Court: Alabama Supreme Court

105 So. 669

213 Ala. 579

CITY BANK & TRUST CO. v. McCAA et al.

7 Div. 573

Supreme Court of Alabama

June 11, 1925

Rehearing Denied Oct. 22, 1925

Appeal from Circuit Court, Calhoun County; R.B. Carr, Judge.

Bill in equity by the City Bank & Trust Company, as guardian of the estate of William Noble, against W.L. McCaa and the First National Bank of Anniston, as executors of the will of John H. Noble, deceased. From a decree sustaining demurrer to the bill, complainant appeals. Affirmed.

Willett & Willett, of Anniston, for appellant.

Knox Acker, Sterne & Liles, of Anniston, for appellees.

THOMAS J.

The bill was for removal of administration to the court of equity for construction of a will. It is averred, among other things:

John H Noble died on November 29, 1923, leaving a last will and testament, which was duly admitted to probate. In this will the appellees, W.L. McCaa and the First National Bank of Anniston, were named executors, qualified as such, and they administered the estate.

The testator left surviving him the following legatees and devisees: Philip Noble, Duncan Noble, Gladys Noble, William Noble (grandson of testator), John H. Noble (non compos mentis), and Cornelia Faulk, all children of the testator except William Noble, grandson of testator, being the son of the deceased son of John H. Noble, and the appellant in this cause is the guardian for the grandson.

The appellant filed the original bill on July 30, 1924, on behalf of its ward, and had the administration removed from the probate court to the circuit court, in equity, at the same time upon properly verified petition by decree of date August 5, 1924. On August 15 and September 5, 1924, appellees and respondents filed their answers to the original bill, in which they admitted that the appellant was entitled to the relief asked on behalf of its ward.

Then on September 6, 1924, the appellant filed its amendment to the original bill asking that John H. Noble, Jr., the non compos mentis son of the testator for whom a trust fund of $25,000 was provided in section 2 of said last will and testament, be not allowed to share at all in the residuary estate, disposed of in the sixth section of the will, which reads as follows:

"I direct that the residue of my estate shall be distributed equally among my children and the descendant or descendants of any child or children that may be dead, such distribution to be per stirpes and not per capita."

Appellant requested in this amendment that it be allowed attorneys' fee against the estate of John H. Noble, deceased, for services rendered in the administration of the trust fund and for the removal of the administration of the estate from the probate court to the circuit court, in equity.

The appellees filed their demurrer to the amendment, setting out as grounds thereof that the construction of the will prayed for by appellant was in violation of the express letter of the will which included all of the children of the testator to share in the residuary estate of the testator, regardless of the fact that this $25,000 trust fund was provided by the testator for the "maintenance, support, and comfort" of his son John H. Noble, and set out as ground of demurrer to the amended bill asking for attorneys' fee that the services rendered by attorneys for the appellant did not inure to the common benefit of the estate or of the trust fund.

The second paragraph of Mr. Noble's will directs his executors to pay the proceeds of the designated life insurance policies, aggregating $25,000, to the First National Bank of Anniston, Ala., to be held by it in trust for the testator's "son, John H. Noble, Jr., during the term of his natural life," and that the proceeds of said policies are to "be invested by the said bank in United States Liberty bonds, and the net income from the same shall be used and paid over by said bank for the maintenance support and comfort" of the said John H. Noble, Jr., "during his life and at his death the said fund remaining shall revert to my estate."

The third paragraph makes provision for certain indebtedness, etc.

The fourth paragraph required the executors to pay over to the First National Bank of Anniston the sum of $5,000 to be held by said bank in trust for William Noble, Jr., the grandson of testator and the ward of the appellant, provided that it shall be invested in Liberty bonds, and when the ward reaches the age of 16 years the bank is authorized to use a reasonable sum thereof for his education, and when he reaches the age of 21 years the funds remaining in the hands of the trustee are required to be paid over to him. In case of his death before he reaches the age of 21, the fund reverts to the estate, and "shall be distributed as directed for the residue of my estate."

Two other special legacies are made; namely, the payment of the mortgage on a dwelling in Jacksonville, Fla., and $5,000 to testator's grandson, Harrison J. Faulk, Jr. This grandchild died before the testator, and the codicil recites said death, and the last-named legacy was revoked on account of the death of the said legatee.

The original bill charged that the executors were denying that the appellant's ward was entitled to any participation in the residuary estate, and prayed for removal of the administration into the circuit court, in equity, that the will might be construed so as to hold that the appellant's ward was entitled to participation in the residuary estate. The executors answered, denying the allegation that they refused to recognize the right of appellant's ward to a part of the residuary estate, and admitted that said ward was entitled to share equally with the children of the testator in the residuary estate, and admitted that said ward was entitled to share equally with the children of the testator in the residuary estate, and that the rights of the ward, as defined by the will of Mr. Noble, were clear, specific, and beyond question. The executors made no objection to the removal of the administration of the estate in the court of equity.

Thereupon the complainant amended its bill, asking for a construction of the will so to exclude John H. Noble, Jr., a child, from participating in the residuary estate, and asking that it be allowed attorneys' fees. The demurrer to the bill as amended was sustained, and the appeal is taken from said decree.

The language of the will is clear and unambiguous. It is its own interpreter. In section 2 is given to John H. Noble, Jr., the interest on $25,000 for life. The residuary clause we have set out directs that all of the residue of the estate, after paying the legacies provided for, shall be distributed equally among all of his children and the descendants of any deceased child, per stirpes.

This court in numerous cases has declared that it is the universal rule that the language of the will, when unambiguous, must control. Goodwyn v. Cassels, 207 Ala. 482, 93 So. 405; Ralls v. Johnson, 200 Ala. 178, 75 So. 926; Henderson v. Henderson, 210 Ala. 73, 97 So. 353; Crawford v. Carlisle, 206 Ala. 379, 89 So. 565; Pearce v. Pearce, 199 Ala. 491, 74 So. 952; Jemison v. Brasher, 202 Ala. 578, 81 So. 80.

In Steele v. Crute, 208 Ala. 2, 93 So. 694, cited by the appellant, it is said:

"The testator's intention, if legal, is the law of the instrument, and must be gathered from its four corners, having due regard for his manifest scheme, to ascertain its spirit as well as its letter, and if possible to make it form 'one consistent whole' where the general and primary interest will prevail over a special or secondary interest that may appear to be to the contrary. If, however, the instrument or any provision therein is ambiguous, and it is believed by the court to be necessary to put itself as far as possible in the position of the testator, this may be done by taking into consideration the surrounding circumstances at the time testator made his will."

See Fowlkes v. Clay, 205 Ala. 523, 88 So. 651.

"It is, of course, true that the intent and purpose of the testator must govern, and this must be derived from a consideration of the will in all its parts. But it is also true that among the rules of interpretation of wills firmly established by our Supreme Court are that, when the terms of a will are unambiguous, there is no room for construction; that the words used therein must be taken in their primary sense; that to depart from this primary or ordinary sense requires clear demonstration, apparent from the will itself, of the enlarged meaning, and that we may not infer the intention of the testator merely from our impressions as to what it would have been natural for the testator to do. Russell v. Russell, 84 Ala. 48, 3 So. 900; De Bardelaben v. Dickson, 166 Ala. 59, 51 So. 986; McGuire v. Westmoreland, 36 Ala. 594; Continental Life v. Webb, 54 Ala. 688; Phinizy v. Foster, 90 Ala. 262, 7 So. 836." Baker v. Baker, 182 Ala. 194, 62 So. 284.

That is to say:

"The court cannot infer, from any impression of its own, as to what would be natural to do; but there must be something in the context of the will to show that the testator did not understand the meaning of the word, or use it in a sense different from its correct meaning." De Bardelaben v. Dickson, 166 Ala. 59, 62, 51 So. 986, 987.

In Lee v. Shivers, 70 Ala. 292, Mr. Justice Somerville wrote:

"The usual rule excludes the allowance of such evidence [evidence of extrinsic facts] for the purpose of controlling or varying the terms of the will, except to explain a latent

ambiguity, or to rebut a resulting trust. *** But we take it as

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