Ford v. Ford

• Decision Date: 30 April 1852
• Citation: 31 Tenn. 431
• Parties: FORD v. FORD et al.
• Court: Tennessee Supreme Court

31 Tenn. 431

FORD

v.FORD et al.

Supreme Court of Tennessee.

April Term, 1852.

This was a bill filed in the chancery court at Somerville by E. C. Ford against Richard Ford, executor of the last will and testament of E. M. Ford, and the distributees and legatees of the said E. M. Ford, alleging the facts set forth in the opinion, praying a construction of the will of said E. M. Ford, and that the executor be required to pay over to him so much as would be his distributive share of the estate of the said E. M. Ford. The defendants demurred to the bill, and at the January term, 1852, Chancellor Jones presiding, the demurrer was allowed and the bill dismissed; from which decree the complainant appealed.

M. & H. Brown and Parham, for complainant; the latter of whom insisted that the residuary clause created the six children therein named tenants in common (1 Atk. 434; 3 Ired. 200; 2 Williams on Ex. 1252.); and that the legacy revoked by the codicil was undisposed of, and therefore distributable. 1 Atk. 494; 1 P. W. 700; 16 Ves. Jr. 451; 2 Lomax on Ex. 181, note; 3 Ves. & Bea. 54; 10 Serg. & R. 351; 1 Ashm. 244; 3 Ired. 425;1 Id. 31; 2 Williams on Ex. 1046, 1252, 1253, and note, and authorities there cited. The law with reference to revoked and lapsed devises or legacies is the same. 2 Lomax on Ex. 51; 2 Williams on Ex. 1046; 1 Swanst. 566; 6 Bro. P. C. 1; 1 Wils. Ch. 248.

Wright & Turley, for defendants, argued that a residuary clause in a will, as the law now is in Tennessee, carries not only everything real and personal not disposed of (2 Madd. Ch. 94), but everything that is ill-disposed of, and everything that in any event turns out not to be disposed of, whether by partial revocation of the will, a lapse, or by gift being void, or given on a contingency which does not happen, or otherwise. 1 Ves. Sr. 320, 321; 8 Ves. Jr. 25; Amb. 138; 4 Ves. 708; 15 id. 550.

Pullian, with Wright & Turley, for defendants, insisted that the revoked legacy passed to the remaining residuary legatees, and cited 2 Williams on Ex. 1250; Toller, 343; 8 Ves. 12, and note b; 15 id. 416, 417; id. 593, and note; 1 Dev. & B. 393, 395; id. 115; 3 Ired. 200;4 Hawks, 215; 1 Jar. on Wills. 302; 2 Roper on Leg. 1669, 1673; 1 id. 484, note.

Totten, J., delivered the opinion of the court.

The plaintiff brings his bill, as next of kin to Edward M. Ford, deceased, to recover an interest in a part of his estate not disposed of, as it is asserted, by the will of the deceased. The case was heard upon demurrer, and the bill dismissed; and thereupon the plaintiff has appealed to this court.

It appears that on the 20th August, 1846, the said Edward M. Ford made and published his will; on the 8th December, 1847, he made and published a codicil to his will; on the 9th March, 1848, he died, and thereon the will and codicil were duly admitted to probate. The plaintiff and defendants are the children of the testator, and one of them, Richard Ford, is executor of the will.

In the second clause of the will the testator makes provision for his wife, in real and personal property, and then proceeds as follows:

“3d. To my son, Edward C., I have given a stock of goods which was intended as his legacy; and I have a note of his for about $200, which I do not wish collected, which together with a bed and a few books, I consider as his portion in full of my estate.

4th. To my six children, Martha M., Harriet, Richard, George B., Samuel, and Peter R., I bequeath all my property not heretofore devised, to be equally divided among them.”

In the sixth clause the property given to the wife, except the negroes, is limited to her for life, then to be equally divided among the six children last above named. The six slaves are given to her, “subject to her disposal;” and we will merely observe, as to that, that the effect is to vest in her the absolute property to the slaves. Deaderick v. Armour, 10 Humph. The wife survived the husband, and then died; and her representative has no connection with this suit. The codicil is in these words:

“Codicil. Since writing the above will my daughter Harriet has married, against the wish and advice of the family, to Samuel Holloway. She has acted in this matter so disrespectfully towards her parents as to forfeit the claim of a child, and it is my wish that the legacy left her above be revoked entirely, and that any claim and benefit arising to her as an heir to my estate be hereby cast off and barred forever to her and her heirs,” etc.

The plaintiff and the other six children named in the will were the only children of the testator living at his death; the said Harriet has since died without issue, and her representative is no party to this bill. The five children named in the fourth clause, Harriet being excluded, claim, in virtue of that clause, the general residue of the estate, estimated at the value of some $70,000; and they insist that the gift to Harriet being revoked, her share passes to them, under and by force of the will.

On the contrary, it is contended for the plaintiff that the share of Harriet is undisposed of by the will, and that it is subject, under the statute, to distribution among the next of kin, as in case of intestacy, it being in fact a case of partial intestacy.

The question to be decided is, What effect has the codicil upon the former dispositions made in the will?

It is perfectly clear that a will and codicil are to be taken and construed together, as parts of one and the same instrument. The intention of the testator is to be gathered from the entire will, and the codicil is no revocation of the will further than it is expressed. Westcott v. Cody, 5 I. C. R. 343.

It is also clear that the codicil in the present will entirely revokes and annuls the gift made by the testator to his daughter Harriet, in the fourth clause of the will. It is contended, therefore, for the defendants, that the case is the same as if the name of Harriet had never been inserted in the will, or as if it had been erased and obliterated from it, and that it is “to be esteemed pro non scripto in the will.” To support this position Humphrey v. Tayleur, Amb. 138, is relied upon. And so it is concluded that the share of Harriet vests in the other five children under the will.

But it seems to us that the position assumed by counsel cannot be maintained, either upon principle or authority.

We may observe that a legacy may fail to take effect, either by lapse, or by partial revocation, or by the gift being void, or by its being on contingency that does not happen, or for other sufficient cause. Humphrey v. Tayleur, Amb. 138; Cambridge v. Rows,...