Fuller v. Nazal, 4 Div. 704

• Decision Date: 29 October 1953
• Docket Number: 4 Div. 704
• Citation: 259 Ala. 598,67 So.2d 806
• Parties: FULLER et al. v. NAZAL.
• Court: Alabama Supreme Court

Page 806

67 So.2d 806

259 Ala. 598

FULLER et al. v. NAZAL.

4 Div. 704.

Supreme Court of Alabama.

Oct. 29, 1953.

Smith & Smith and Roy L. Smith, Phenix City, for appellants.

Walker & Walker, Opelika, and Homer W. Cornett, Phenix City, for appellee. The following charges were refused to contestants:

'(1) I charge you, gentlemen of the Jury, the solemnly declared will of the testator cannot be allowed to stand or fall on the supposed motive of the testator.

'(2) I charge you, gentlemen of the Jury, that if you believe all of the evidence in this case, there was no undue influence shown to have been exercised by anyone in the drawing, signing, preparing, and attesting of either will of the codicil offered for probate in this case.

'(3) I charge you, gentlemen of the Jury, that a will duly signed by the testator in the presence of two witnesses, who signed it in her presence and in the presence of each other and at testator's request and in her presence, is presumed valid and the burden of proof is on the contestant to show all of elements constituting the alleged fraud or mistake.

'(4) The Court charges you, gentlemen of the Jury, that if you believe all the evidence in this case, you must find that the 1939 will of Mrs. Ruth Bayard Edmunds and the codicil thereto made in 1947, constitute and are the true, genuine last will and testament of the said Mrs. Ruth Bayard Edmunds.

'(5) I charge you, gentlemen of the Jury, that in the consideration of this case you must not rely upon supposition, conjecture or speculation in arriving at the true intent of the testator, since in a will contest, that is not the manner to be used in determining the true intent of the testator, as you must rely upon the facts presented for your consideration.

'(6) I charge you, gentlemen of the Jury, that if from the consideration of all the evidence in this case you cannot determine, without supposition or conjecture, whether or not Mrs. Ruth Edmunds intended to revoke the will she made in 1941, then you must find that the 1939 will and the codicil made in 1947, constitute the last will and testament of Mrs. Ruth Bayard Edmunds, as you must not rely on supposition or conjecture, but facts.

'(7) I charge you, gentlemen of the Jury, that a duly signed and attested codicil to a will, showing without equitation to refer to a will of a prior date signed and attested by the same testator, and readopting and republishing said former will, has the legal effect of making said former will and the codicil thereto, the genuine last will and testament of said testator, as of the date of said codicil, without regard to any other wills, she may have made, if said codicil is the last instrument she duly executed.'

SIMPSON, Justice.

This is a will contest. The proceeding was instituted to prove and have admitted to probate and record the last will and testament of Mrs. Ruth Bayard Edmunds, a resident of Phenix City, Alabama, who died April 21, 1951. The appellants are grandchildren of decedent and appellee is her only surviving child.

The circumstances are novel and call for an application of § 27, Title 61, Code 1940. The over-all question is whether a will which has been revoked by a second will has or has not been revived by the operation of a subsequent codicil.

Mrs. Edmunds duly executed a will on June 28, 1939; thereafter on July 15, 1941, she executed another will which effectively revoked the 1939 will; and thereafter on November 30, 1947, she executed the following duly attested instrument:

'Georgia, Muscogee County:

'Whereas, I, Mrs. Ruth Bayard Edmunds, on the 28th day of June, 1939, sign, seal, on the 28th day of June, 1939, sign, seal, and declare and publish my last will and testament in the presence of E. S. Flowers, J. Mark Mote and Mary W. Robinson, who signed the said will and testament as witnesses; and

'Whereas, I am desirous of making certain changes in my said will,

'I, Therefore, make and publish this codicil to said will and testament, and also re-publish all the terms of said will not in conflict with this codicil.

'I.

'I hereby revoke Item VII of my original will.

'II.

'I hereby constitute and appoint my daughter, Mrs. Ruth Edmunds Nazal, as a co-executor of my will, and as a co-trustee of the trusts created and established in said will. This appointment is made upon the condition that my said daughter shall serve in said capacities without compensation. My other executor and trustee, the Merchants and Mechanics Bank, of Columbus, Georgia, shall be entitled to and shall receive the full compensation and commissions allowable for administering said will and said trusts.

'In Witness Whereof, I have hereunto set my hand and seal this 30th day of November, 1947.

'(Signed) Ruth Bayard Edmunds'

Then follows the proper attestation clause.

The two wills were substantially the same except Item VIII. The dispositions in that item of the 1939 will were somewhat favorable to appellants, where those in Item VIII of the 1941 will were not, but were favorable to appellee and her children. When testator died appellee propounded the 1941 will for probate. Appellants interposed their contest, claiming the 1939 will, together with the codicil, was the last will and testament and propounded these documents for probate; appellee then interposed her contest to these documents as the last will and testament of decedent and contended the codicil did not revoke the 1941 will but was intended to apply to it.

The crucial issue in the case was whether or not the 1947 codicil had the effect of reviving the 1939 will and of revoking the 1941 will, or whether testator intended the codicil to apply to her 1941 will but by mistake of the draftsman it was made to refer to the 1939 will.

The cause was tried to the jury and the 1941 will was declared by the verdict to be the last will and testament of the decedent and that the codicil was intended to apply to that will. The court, on motion of appellee, then struck from the codicil the provisions referable to the 1939 will and admitted to probate the codicil, as amended, together with the 1941 will. This method of eliminating from a testamentary document parts not intended by the testator but inserted by mistake of the draftsman, if as amended the scheme of the will remains intact, has been approved. 57 Am.Jur. 274, §§ 376, 377; Sherwood v. Sherwood, 45 Wis. 357; O'Connell v. Dow, 182 Mass. 541, 66 N.E. 788; City Nat. Bank of Columbus v. Slocum, 6 Cir., 272 F. 11; In the Goods of Boehm, Probate Div. 247; In the Goods of Reade, P.D. 75; In the Goods of Gordon, p. 228. Our decisions recognize the right to contest only a part of a will or codicil and to admit to probate the part which is not revoked. Lyons v. Campbell, 88 Ala. 462, 7 So. 250; Shelton v. Gordon, 252 Ala. 187, 40 So.2d 95; Binford v. Penney, 255 Ala. 20, 49 So.2d 665. In effect, this was the result attained by granting appellee's motion and the proceeding impresses us as sound practice. No assignment of error challenged the procedure.

As provided by statute, Code 1940, Title 61, § 52, the trial court made up the issue for determination by the jury in his oral charge as follows:

'A cardinal principle in the construction of wills is to ascertain the intent of the testator and give it effect if it is not prohibited by law. (Record, 186.). * * *

'The plaintiff in this case contends that in 1941, the deceased, Mrs. Edmunds, made a will and by that will she revoked a former will made in 1939. The plaintiff contends that sometime in 1947, she [Mrs. Edmunds] gave instructions to some member of the bank, I believe it was the Merchants & Mechanics Bank in Columbus, Georgia, to add a codicil to that will, and it is the contention of the plaintiff that the codicil referred to the '41 will. However, on the other hand, the defendant in this case contends that by that codicil, she intended to revive the '39 will; that that was her intention, to revive that will, and that in so doing she revoked the '41 will. * * * Seek diligently for the truth and try to ascertain the intention of the testator, what was the intention of the testator, as it is your duty to decide that. * * * That codicil must be applied to one or the other of those wills, and the whole issue for you to determine is on which will (it) * * * is to be applied. (Record, 187, 188.)'

The evidence was entirely sufficient to warrant the verdict returned in response to the foregoing charge, since there was substantial proof going to show that Mrs. Edmunds all the while thought that her 1941 will remained in full force and effect and therefore that the codicil, rather than revoking that will and reviving the 1939 one by implication, was intended to apply to her last will, but that by the mistake of the draftsman it was captioned to apply to the 1939 will. It would serve no useful purpose to set out the evidence, inasmuch as the appeal presents the principal legal question as to whether or not this issue was a question of law for the court or of fact for the jury. We entertain the view that the court ruled correctly in refusing for the appellants the affirmative charge and in submitting the issue to the jury.

The rule, of course, is that the intention of the testator governs the construction of a will, but if by its terms it is unambiguous there is no room for construction and it will be taken as written. Smith v. Nelson, 249 Ala. 51, 29 So.2d 335.

But if the document is ambiguous, then the intention of the testator is the primary inquiry and will be ascertained not only from the language of the will, taken in connection with existing circumstances known to the testator at the time of drafting the instrument, but also from the testator's relevant declarations or statements at or about the time of its execution. De Mouy v. Jepson, 255 Ala. 337, 51 So.2d 506.

This latter principle controls the construction of the codicil here. Under our revival statute a codicil may not revoke a...