Ide v. Harris, 7 Div. 237

• Decision Date: 07 October 1954
• Docket Number: 7 Div. 237
• Citation: 261 Ala. 484,75 So.2d 129
• Parties: Sarah Harris IDE v. Eulalie Converse HARRIS.
• Court: Alabama Supreme Court

Page 129

75 So.2d 129

261 Ala. 484

Sarah Harris IDE v. Eulalie Converse HARRIS.

7 Div. 237.

Supreme Court of Alabama.

Oct. 7, 1954.

Hood, Inzer, Martin & Suttle, Gadsden, and Knox, Jones, Woolf & Merrill, Anniston, for appellant.

Lusk, Swann & Burns, Gadsden, for appellee.

MERRILL, Justice.

This is an appeal from a decree holding that appellee, Eulalie Converse Harris, and appellant, Sarah Harris Ide, are tenants in common of a lot in Gadsden, Alabama, each owning an undivided one-half interest in the real estate, and ordering a sale for division.

Reduced to the simplest terms, the basis of the bill of Mrs. Harris to sell for division was that she owned an undivided one-half interest in the lot by virtue of a devise from her husband, R. A. Harris, to all real estate or interest therein, wherever located, owned by him at the time of his death, and that he received this interest in the lot under the will of his first wife, Mrs. Florrie M. Harris.

The appellant, in her answer and cross bill, showed that she was the only child of Florrie M. Harris and R. A. Harris; that her mother died in 1908; that the appellant was the 'Sarah Harris' referred to in the will of Florrie M. Harris; denied that her father, R. A. Harris, took an undivided one-half interest in the real estate but, to the contrary, alleged that she took an undivided one-half interest in her mother's property at the time she became twenty-one years of age, and that she took absolute title to the other one-half interest at the time of her father's death, and she asked to be declared the owner of all the interest in the realty, subject to some leases, not here material.

The court granted the prayer of appellee and denied to appellant the relief prayed in her cross bill and the cause comes here with both parties agreeing that the main issue is the construction of the last will and testament of Florrie M. Harris.

The original will was not before the trial court but it was stipulated that the copy introduced in this case was a true copy and that it had been admitted to probate. Actually the copy used was a copy of the will as recorded in the Will Record in the Probate Office of Etowah County. It reads as follows:

'State of Alabama

'Etowah County

'I Florie M Harris being of sound mind and mem testamentary ory and wishing to make a testamentary disposition of may estate, do hereby publish and declare this my last will and testament

'I hereby nominate and appoint, should he survive me, my Father R B Kyle, my Executor and ask that he be allowed to administer my estate without bond

'I give to my husband R A Harris in trust, my entire estate, both real and personal, for the benefit and use (under conditions and restrictions hereinafter named) of himself and my only child Sarah Harris. My said trustee under this is to place all my real property in the hands of a responsible real estate agent, to be by him rented to the best advantage, the proceeds of rents to be applied as follows:

'First: To the agents commissions, which shall not exceed 5% of gross amount of collections from rents.

'Second: Payment of necessary repairs and all taxes and insurance as they fall due, and the balance shall be paid one half to my husband R A Harris and the remainder to Miss Hannah Crook, for the support and education of my daughter Sarah I hereby direct that at my death my daughter Sarah shall be placed in charge of Miss Hannah Crook, who shall have full control of the education and rearing of my said daughter, Sarah, and I ask that no one be allowed to interfere with said Miss Hannah Crook in carryin out this greatest of trusts the training and education of my Child

'I want distinctly understood that my husband R A Harris, whom I appoint as trustee has no right to sell or exchange or in any way dispose of any of my real estate. And should my daughter Sarah survive my husband, then the income from rents and profits of my real estate paid to R A Harris shall be paid to Miss Hannah Crook for her use of my daughter Sarah. I believe the income mite be sufficient to support and maintain Miss Hannah Crook and my daughter Sarah enabling Miss Hannah Crook to devote her whole time to the rearing of my said daughter

'In the event my child lives to attain her majority, or to marry, then my trustee, R A Harris, shall turn over to Sarah one half of the property I own at the time of my death and which my Executor turns over to him as trustee under the provisions of this instrument

'Should I not have on hand moneys to meet all funeral expenses, I authorize my said trustee to mak a loan on my rents which loan shall be paid off and discharged before any division of income is made between my Child Sarah and my husband, R A Harris

'The above and foregoing page comprise My Will,--I hereby revoking all former wills and constitute R B Kyle my said Executor of this my last will

'In testimony whereof, I, the above named Florie M Harris, have hereunto set my hand and seal this the 9 day of November Nineteen hundred and six.

'Mrs. Florie M Harris

'At Gadsden Alabama on the _____ day of November Nineteen hundred and six (1906) the above named Florie M Harris known to us, signed and sealed this instrument and published and declared the same as her last will; and we in her presince and at her request, and in the presence of each other, signed our names as witnesses

'C L Guice

'Edyth Little'

It is stipulated that Mrs. Florrie M. Harris owned the real estate, the subject matter of this suit, at the time of her death and that both parties to the suit claim under her will. It is not disputed that appellant, the daughter of Mrs. Florrie M. Harris, inherited under the will and now owns an undivided one-half interest in said real estate; and that appellee's claim to the other undivided one-half interest is based on the contention that R. A. Harris, the appellant's father, the surviving husband of Florrie M. Harris, and now the deceased husband of appellee, took title to the other undivided one-half interest under the will and that he, therefore, had the right to devise this undivided one-half interest to appellee under the provisions of his will.

The appellant states her position in brief as follows: 'R. A. Harris, the father of appellant, only took, under the will, the right to receive one half of the net rent from the real estate involved during his life. He never took title to any interest in said real estate and he had no title therein to devise to his second wife, the appellee.'

The appellee states her position in brief as follows: 'No rules of property based upon phraseology or language decided by this or any other court are presented on this appeal. The court is here invited and it becomes the court's duty from the four corners of the will to determine whether or not R. A. Harris, when Sarah arrived at majority or married took an interest in the property which he could pass by inheritance or devise. If the court concludes this adversely to appellee that, of course, is the end of this case.'

There are several rules of construction which guide us in our task of construing this will. The first, which is variously referred to as the 'pole star', the 'cardinal', the 'fundamental' and the 'cardinal and fundamental', is to ascertain and to give effect to the intention of the testator, and this intention, if legal, is the law of the instrument. 19 Ala.Dig., Wills, k439.

In our recent case of Baker v. Wright, 257 Ala. 697, 60 So.2d 825, 829, we said:

'The fundamental rule in the construction of wills is that the intention of the testator is the controlling factor, and it therefore becomes the duty of the court to ascertain, if possible from the terms of the will itself, the true intent of the testator and give it effect, if legally permissible. Schowalter v. Schowalter, 221 Ala. 364, 128 So. 458; Cook v. Morton, 254 Ala. 112, 47 So.2d 471.

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'Where a will is subject to construction, as unquestionably is this will, a court may ascertain the true intent and meaning of the testator by putting itself, as far as possible, in the place of the testator so circumstanced and reading all the provisions of the will in the light of the environment of such testator at the time he executed the will. Thomas v. Reynolds, 234 Ala. 212, 174 So. 753; Kimbrough v. Dickinson, 247 Ala. 324, 24 So.2d 424; Adams v. Jeffcoat, 252 Ala. 501, 41 So.2d 183.

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'In connection with the procedure relating to the interpretation of wills, certain legal principles have been educed and enunciated in the form of presumptions, which are now commonly accepted and regarded as substantive rules of testamentary construction. Prominent among these principles, and considered as an aid to assist and guide the judicial mind in discovering the intention of the maker of a will, is the presumption that the testator intended to dispose of his entire estate; or, stated negatively, it is not to be presumed that the testator intended to die intestate as to any portion of his property, unless the contrary intention is so plain as to compel a different conclusion. Arrington v. Brown, 235 Ala. 196, 178 So. 218, and cases cited.'

In Baker v. Hendricks, 240 Ala. 630, 200 So. 615, 617 we said:

'Construction of a will, ambiguous in its provisions, is to ascertain the real intention of the testator. No presumptions or rules of construction can serve to rewrite a will at variance with its clear and unambiguous terms, whatever extraneous facts may have led the testator to make the will he did make. * * *'

The court said in Blackwell v. Burketts, 251 Ala. 233, 36 So.2d 326, 328, that:

'True, where an estate or interest is bequeathed in one clause of a will in clear and decisive terms, this bequest cannot be taken away or cut down by raising a doubt upon the extent and meaning of a subsequent clause, nor by inference therefrom, nor by any subsequent words that are not as clear and decisive as the words of the clause giving the...