Gurley v. Bushnell

• Decision Date: 14 June 1917
• Docket Number: 8 Div. 33
• Citation: 76 So. 324,200 Ala. 408
• Parties: GURLEY et al. v. BUSHNELL.
• Court: Alabama Supreme Court

76 So. 324

200 Ala. 408

GURLEY et al. v. BUSHNELL.

8 Div. 33

Supreme Court of Alabama

June 14, 1917

Appeal from Circuit Court, Madison County; R.C. Brickell, Judge.

Bill by Ida T. Bushnell against Frank B. Gurley and others, to remove an estate from the probate to the chancery court, and to require the filing of an inventory, and the execution of a bond, and to impress a trust upon real estate to secure the payment of a legacy left complainant. From a decree overruling demurrers to the bill, and removing the estate respondents appeal. Affirmed.

Cooper & Cooper, of Huntsville, for appellants.

David A. Grayson, of Huntsville, for appellee.

SAYRE J.

The last will and testament of Thomas P. Gurley provided as follows:

"To all of my nieces and nephews, all of whom I remember by name, I give the sum of one cent each, and to my brother Frank B. Gurley, I give all of my property of every kind both real and personal, and I now make and appoint him, the said brother Frank, my sole executor, agent and attorney without bond to carry out the provisions of this will, and I now authorize and empower him at my death to take charge of everything I leave, and at such time and place as he thinks best in twelve months from my death advertise and sell everything I leave to the highest bidder for cash, and pay all my burial expenses and all claims he knows to be just and legal. Then pay to my niece, Mrs. Mollie G. Hall, the sum of two thousand dollars, pay to my niece Mrs. Cornelia A. Bennett, wife of Frank S. Bennett, the sum of five hundred dollars, and to my faithful housekeeper, Ellen Scott, the sum of five hundred dollars, and to my niece, Mrs. Ida T. Bushnell pay the sum of one hundred dollars every year as long as she lives."

Without going into a detailed statement of the facts averred, it will suffice to say that the equity of the bill filed by the appellee against Frank B. Gurley and Mollie G. Hall depends upon the answer to the question whether by the will appellee took any interest in testator's property left by him at his death, or whether the provision for her amounted to no more than a precatory gift, and this involves a construction of the will.

The matter does not seem difficult, nor to require any extended consideration of the technical law of wills. The language employed is not technical, and some simple and well-settled rules would seem to suffice, including this, as of first importance: That the instrument must be construed as a whole.

There can be no doubt, upon consideration of its plain language that the last clause of the will intends to give legacies in fixed amounts to the defendant Mollie G. Hall and to Cornelia A. Bennett, who are named as nieces of testator, and to Ellen Scott, his housekeeper and to appellee, a niece, an annuity of $100 a year during her life. Language to that effect could not be plainer. How, then, does it appear that this specifically expressed intention has been defeated or modified in any respect? It seems to be supposed that the opening clause of the will, wherein testator says, "To all of my nieces and nephews, all of whom I remember by name, I give the sum of one cent each," should be accepted as having or contributing to that effect. One canon of construction is that in case of apparent repugnancy, the general intent of the testator, as disclosed in the will, shall be preferred to the special intent (Hollingsworth v. Hollingsworth, 65 Ala. 321); but this rule does not apply where there is a clearly expressed intention to effect another purpose, distinct and different from the...