Cox v. Hale

• Decision Date: 10 November 1927
• Docket Number: 7 Div. 749
• Citation: 217 Ala. 46,114 So. 465
• Parties: COX v. HALE et al.
• Court: Alabama Supreme Court

114 So. 465

217 Ala. 46

COX v. HALE et al.

7 Div. 749

Supreme Court of Alabama

November 10, 1927

Rehearing Denied Nov. 25, 1927

Appeal from Circuit Court, Etowah County; Woodson J. Martin, Judge.

Bill in equity by Norma Cox against Della Hale and others, contesting the will of Johnson B. Hale, deceased. From a decree denying relief, complainant appeals. Reversed and remanded.

Hugh Reed, of Center, and Hood & Murphree, of Gadsden, for appellant.

Motley & Motley, of Gadsden, for appellees.

BOULDIN J.

This is a will contest by bill in equity after probate.

In numerous ways complainant raised the point in the court below that the will is void on its face. This question is first presented in assignments of error and briefs on this appeal.

In "second" item of the will, the testator, Johnson B Hale, devised a house and lot in the city of Gadsden definitely described, to complainant, his daughter, Norma Cox.

In "fourth" item he devised and bequeathed to his wife, Della Hale, and six children, naming them, "all my real property or mixed property that I may die seized and possessed."

The argument supporting the view that this conflict in the terms of the will renders it void proceeds thus: That the property devised in each item is definitely and clearly defined, the language must be given its clear unequivocal meaning, and there is no room for construction; that in case of clear and irreconcilable conflict the last clause must have precedence over the first; that, therefore, the devise of all real estate in the fourth item defeats the devise of the house and lot in the second; but, it is argued, this result defeats the general scheme of the will and the purpose of the testator to give his daughter, Norma, a share in his estate, works injustice to a named beneficiary, and therefore the entire will is invalid.

We cannot concur in this process of reasoning. The real conflict here is in matter of description of the properties devised under the two items.

A specific devise of clearly defined property is not to be defeated and stricken from the will by general terms of description in a later devise. The fundamental rule of construction is to consider the document as a whole, with a view to give effect to its full intent. This requires that each item of the will be given effect, each provision a field of operation, unless the entire document forbids such construction.

True in the absence of conflict or ambiguity in the terms of the will, it must speak for itself. But seeming conflict calls for construction, interpretation; the testator's intent being the ultimate end in view.

The rule giving the later provision of a will precedence as the last expression of the testamentary purpose has no place except in case of irreconcilable conflict, where both cannot be given effect upon a fair interpretation of the whole instrument. We have no difficulty in construing the fourth item of this will as residuary in character, as intending to pass all real property except that specifically devised in the second item.

If we regard the will as ambiguous in this regard, and place ourselves in the position of the testator as disclosed by the existing circumstances, we note that this house and lot had been theretofore set apart to the daughter, Norma; she had been given the possession and income therefrom for several years. It is not difficult to infer that in the thought of the testator he regarded it as already segregated from his estate, but put in the will to pass title. It was not property of which he expected to die "seized and possessed."

We conclude the general devise to the wife and children did not defeat the specific devise to complainant, the daughter of a former marriage. Hatcher v. Rice, 213 Ala. 676, 105 So. 881; Ralls v. Johnson, 200 Ala. 178, 75 So. 926; Duncan v. De Yampert, 182 Ala. 531, 62 So. 673.

We would not be understood as holding that, if the will be construed to devise the whole of testator's real estate to his wife and children of the last marriage, this would render the entire will invalid.

It is a recognized rule that, if specific devises and legacies are declared invalid because violative of positive law or public policy, and thus mutilated, the entire scheme and purpose of the testator in the disposition of his estate is thwarted, and injustice done to beneficiaries, the will is declared invalid in toto. Brizendine v. Amer. Trust & Savings Bank, 211 Ala. 694, 101 So. 618; Reid v. Voorhees, Ex'r, 216 Ill. 236, 74 N.E. 804, 3 Ann.Cas. 946. The famous Tilden will involved this principle. Tilden v. Green, 130 N.Y. 29, 28 N.E. 880, 14 L.R.A. 33, 27 Am.St.Rep. 487.

The case before us involves no question of illegal provisions. If the will, construed as a appellant contends, gave all the lands to the wife and children, this was within the discretion of the testator. We can hardly follow a line of reasoning which would construe the will according to a supposed last expression of the testamentary purpose, and still say the same will shows the manifest scheme and intent of the testator was defeated. If the will be construed as appellant contends, the purpose to give all the lands to the wife and children became the testamentary intent and scheme. When none of the provisions of a will are unlawful, it becomes a question of construction and not destruction of the will. A will may be void for hopeless uncertainty, but no such question is presented here.

The case was tried by jury on issues of mental incapacity and undue influence. The trial court thus defined undue influence:

"Now, undue influence which will void a will must amount to coercion or fraud--an influence tantamount to force or fear, and which destroys the free agency of the party, and constrains him to do what is against his will."

To this exception was reserved by complainant.

Reduced to fewest words, it was well settled at common law that all cases of undue influence, as applied to wills, range themselves under the head of coercion or of fraud. This definition, approved by text-writers, was early adopted and has been consistently followed in the decisions of this court. 1 Williams on Executors (6th Amer.Ed.) pp. 68 to 71; 1 Jarman on Wills (6th Ed., Bigelow's note) p. 67; 1 Schouler on Wills (6th Ed.) §§ 261, 262; Taylor v Kelly, 31 Ala. 59, 70, 68 Am.Dec. 150;...