Hall's Adm'r v. Compton

• Decision Date: 17 June 1955
• Citation: 281 S.W.2d 906
• Parties: Lillian Felts HALL'S ADMINISTRATOR (Ernest Fall, Jr.), et al., Appellants, v. Lillian Felts COMPTON et al., Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 906

281 S.W.2d 906

Lillian Felts HALL'S ADMINISTRATOR (Ernest Fall, Jr.), et al., Appellants, v. Lillian Felts COMPTON et al., Appellees.

Court of Appeals of Kentucky.

June 17, 1955.

Rehearing Denied Sept. 30, 1955.

Frank Carr, Fulton, F. B. Martin, Mayfield, for appellant.

Warren & Jones, Fulton, Woodard Tipton, Hickman, for appellee.

MONTGOMERY, Judge.

Lillian Felts Hall died on December 7, 1953, leaving surviving her as her heirs at law Lillian Felts Compton and Louise Felts Parke, the daughters of a deceased brother, and Holland O. Felts and James H. Felts, the sons of her other deceased brother. Her estate of approximately $123,000 consisted of money in the bank, various articles of personal property, including jewelry, stocks, bonds, notes, and certain business properties in Fulton, Kentucky. She also owned an undivided one-half interest in some residence property located at 907 Walnut Street, Fulton, Kentucky, as joint tenant with her two nephews, Holland O. and James H. Felts. The residence property was adjacent to two vacant lots owned by her, forming a 'U' shaped tract around another vacant lot which was owned by her two nephews as the heirs at law of their father.

This appeal is taken from a judgment construing the holographic will and codicil of the testatrix. The principal question involved the determination of whether one portion of the will should be construed as residuary or as a specific clause. The lower court held that the clause was a specific bequest and devise in favor of Louise Felts Parke. She and the administrator with the will annexed are the appellants, and the remaining niece and two nephews are the appellees.

The will in question was written on July 1, 1946, and contains a codicil bearing the same date. In part, the will is as follows:

'Page I Will of Mrs. Frank P. Hall

Know all men by these presents that Lillian Felts Hall a citizen of Dresden Weakley Co. Tenn & Fulton Fulton Co-Ky. do publish this as my last will and testament--revoking all former Wills made here to fore by me----

First--I direct that any and all just debts made by me that I may owe at the time of my death shall be paid by my executors out of my estate.

Second--I give devise & bequeath to my niece Louise Felts Parke of

                St. Louis Mo.                       $5000.00
                To Miss Musa Hall of Martin
                Tenn.                                5000.00
                *  *  *
                To Dr. Hugh Barr-Nashville
                Tenn.                                1000.00
                *  *  *
                To Miss Margaret Campber-Nashville
                Tenn                                  500.00
                To City National Bank of Fullerton
                Ky                                    500.00
                *  *  *
                

After my death the home place at 907 Walnut St. that I own 1/2 int. in shall go to my niece Louise Felts Parke St. Louis Mo. to be disposed of as she desires any & all personal property & real estate shall go to Louise Felts Parke St. Louis Mo. except auto already disposed of in will to Bobby Parke--(our emphasis)

To Louise Felts Parke I fine pearl necklace & one diamond soltaire ring

To Lucile Gambill one tiffany cluster diamond ring.

To Musa Hall Martin Tenn--1 soltair diamond ring.

* * *

* * *

To Bettie Gregory--1 3 stone diamond ring. * * *'

The will contained fifteen bequests to various named persons in designated amounts prior to the paragraph in question. These bequests included one to Louise Felts Parke for $5,000. Following the paragraph construed is a second bequest to Louise Felts Parke for one fine pearl necklace and one diamond solitaire ring, which is followed by five other bequests disposing of certain jewelry and $500. The next paragraph nominated the executors of the will, each of whom failed or declined to qualify. The codicil contained a specific bequest disposing of certain articles of personal property.

Louise Felts Parke and the personal representative of the estate contend that the phrase 'any & all personal property & real estate shall go to Louise Felts Parke' is a residuary clause in favor of Louise Felts Parke for all of the property of the estate except such as is disposed of by the various bequests. The appellees, who are the remaining three heirs at law of the testatrix and who are not mentioned by name in the will, contend that the phrase referred to is a specific bequest and devise of such of the personal property not otherwise disposed of that remained at the home of the testatrix, together with the two contiguous vacant lots and her undivided one-half interest in the home place, and that all other property of the estate, approximately $80,000 in value, descended by intestacy to the four nieces and nephews in equal parts. This, in effect, was the holding of the lower court.

Appellants took the deposition of appellant Ernest Fall, Jr., administrator with the will annexed, and he was permitted to testify and introduce a purported will of the testatrix dated January 1, 1945, over the objection of the appellees. This instrument was entirely in the handwriting of the testatrix and was substantially the same as the probated will, including the same wordage in the questioned part of the will, the difference being that the previous instrument contained a period after the word 'desires' and the word 'any' following was capitalized. There were other differences in the bequests. Appellees complain of the adverse ruling of the Chancellor in admitting this evidence, but no merit is found in their contention since it was not prejudicial in view of the judgment rendered.

It is readily seen from a reading of the will that it is doubtful what the testatrix intended by the phrase 'any & all personal property & real estate'. Whether she intended a residuary clause in favor of Louise Felts Parke or whether it referred only to the personal property and real estate at or connected with the home place at 709 Walnut Street is to be determined. This uncertainty or ambiguity is apparent upon the face of the instrument. Such an ambiguity has been defined as being patent. It is distinguished from a latent ambiguity discoverable only when the language of the will is sought to be applied to the beneficiaries or the property disposed of by the will and it is thus developed either that the transcription in the will is defective or that it applies equally to two or more persons or things. Page on Wills, Volume 4, page 650; Thornhill Baptist Church v. Smither, Ky., 273 S.W.2d 560.

If a patent ambiguity alone exists, the intention of the testatrix must be determined only from the language used by her in the will, and extrinsic evidence is not admissible to change the construction or interpretation of such language. Jennings v. Jennings, 299 Ky. 779, 187 S.W.2d 459; Miller v. Trigg County Farmers Bank, 312 Ky. 321, 227 S.W.2d 429; Union Bank and Trust Company of Lexington v. Bassett, Ky., 253 S.W.2d 632. It is only where there is doubt or uncertainty arising from the language used that resort may be had to the technical rules of construction for clarification. Prewitt v. Prewitt's Ex'rs, 303 Ky. 772, 199 S.W.2d 435; Huffman v. Chasteen, 307 Ky. 1, 209 S.W.2d 705.

The rule of construction of a will containing a patent ambiguity is that the court will look to the four corners of the instrument to determine the intent of the testatrix and will give due weight to every provision of the will and determine what the testatrix intended by the words...