Jemison v. Brasher

• Decision Date: 06 February 1919
• Docket Number: 6 Div. 848
• Citation: 81 So. 80,202 Ala. 578
• Parties: JEMISON v. BRASHER et al.
• Court: Alabama Supreme Court

81 So. 80

202 Ala. 578

JEMISON v. BRASHER et al.

6 Div. 848

Supreme Court of Alabama

February 6, 1919

Appeal from Circuit Court, Tuscaloosa County; Henry B. Foster Judge.

Bill by Mary T. Jemison, as executrix of the will of M.P. Jemison against Lela J. Brasher and others, to remove an estate from the probate to the chancery for partial settlement, and to construe the will. From the decree rendered, the complainant appealed. Affirmed.

Foster Verner & Rice, of Tuscaloosa, for appellant.

Forney Johnston and W.R. Cocke, both of Birmingham, for appellees.

THOMAS J.

The suit filed, in equity, by Mary T. Jemison, as executrix under the will of Mims P. Jemison, deceased, sought construction of said will, removal of the administration from the court of probate, and partial settlement of her accounts as executrix.

After demurrer to the bill was overruled and answer filed, the cause was submitted on the pleadings and agreed statement of facts. The court decreed, among other things: (1) That Mary T. Jemison has a life estate in the real and personal property of the estate of Mims P. Jemison, deceased, with the right to use the rents, income, and interest derived therefrom for her own benefit, as she may desire, and upon the falling in of the life estate all of said property, real and personal, shall be equally divided among testator's four children; (2) that "Mary T. Jemison, as executrix aforesaid, may lawfully sell any of the personal property belonging to said estate at any time; that the said Mary T. Jemison may use the interest and income from said personal property during the period of her natural life, but that she may not use, employ or expend for her own individual use or in any other capacity than as executrix under the said will, any part of the corpus of the personal property of the estate of Mims P. Jemison, deceased"; and said executrix was directed to "administer said estate in accordance with this decree." The reporter will set out the will.

The agreed statement of facts informs us that at the time of his death and on the date of the execution of his will, testator possessed a large estate, consisting of real and personal property, and that a substantial income was realized from the invested securities; that he had four children, two of whom were by his first wife, and two by his second wife, Mary T. Jemison.

Under the old rule, we may observe of the right of a personal representative to removal of administration of the estate from the probate court to a court of equity, that it exists only when there are equitable grounds therefor, as necessity for construction, or a bona fide doubt as to the true meaning of the will, or to protect the personal representative in the establishment, administration, or execution of the trust; and the right of removal, at the instance of a legatee or devisee of testator, heir at law, or next of kin of intestate, is unqualified. Trotter v. Blocker, 6 Port. 269, 290; Lake View Co. v. Hannon, 93 Ala. 87, 89, 9 So. 539; Hurt v. Hurt, 157 Ala. 126, 130, 47 So. 260; Ashurst v. Ashurst, 175 Ala. 667, 672, 57 So. 442; Ralls v. Johnson, 75 So. 926, 930; Pearce v. Pearce, 74 So. 952, 959; Kaplan v. Coleman, 180 Ala. 267, 60 So. 885; Carroll v. Richardson, 87 Ala. 605, 610, 6 So. 342. This, however, is changed by statute (Gen. Acts 1915, p. 738), and the right of removal is not challenged. Taking jurisdiction, a court of equity will administer the estate and apply the substantive law regulating the conduct and settlement of administration in the probate court. Taliaferro v. Brown, 11 Ala. 702; Hall v. Heirs of Wilson, 14 Ala. 295; Cowles v. Pollard, 51 Ala. 445; Tygh v. Dolan, 95 Ala. 269, 10 So. 837; Hurt v. Hurt, supra.

The cardinal rules of testamentary construction have been given frequent application by our court. Gunter v. Townsend, 79 So. 644, 648, 649; Ralls v. Johnson, supra; Pearce v. Pearce, supra; Myrick v. Williamson, 190 Ala. 485, 67 So. 273; Montgomery v. Wilson, 189 Ala. 209, 66 So. 503; Duncan v. De Yampert, 182 Ala. 528, 62 So. 673; Wolffe v. Loeb, 98 Ala. 426, 13 So. 744; Wynne v. Walthall, 37 Ala. 37. Of these, the great rule is that the intention of a testator expressed in his will shall prevail, if consistent with the rules of law, defined in the old books as "the legal declarations of a man's intentions, which he wills to be performed after his death." 2 Black.Comm. 499. To this intention "all rules must bend." Smith v. Bell, 6 Pet. 68, 8 L.Ed. 322. The general scheme, or primary intent of the testator manifest in the will itself, forming a consistent whole, must be given expression or effect over the special and secondary intent to the contrary finding expression therein. Ralls v. Johnson, supra; Gurley v. Bushnell, 76 So. 324; Gunter v. Townsend, 79 So. 644, 648. This intention of the testator must be gathered from the whole instrument and all of its parts, from the testator's general scheme and plan manifested by the will itself, and from the facts that existed which were calculated to influence the testator at the time of his execution of the will, and the circumstances in which it was to operate. Mims v. Davis, 197 Ala. 88, 72 So. 344.

It is a further established rule of such construction that when an estate or interest is given in one clause of a will in clear and decisive terms, the interest so given cannot be disminished "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 interest or estate." Duncan v. De Yampert, 182 Ala. 528, 62 So. 673; Pitts v. Campbell, 173 Ala. 604, 55 So. 500; Bruce v. Bissell, 119 Ind. 525, 22 N.E. 4, 12 Am.St.Rep. 436; 1 Underhill on Wills, § 358; 30 Am. & Eng.Ency.Law, 688; 1 Schouler on Wills, §§ 466, 468-474; Ralls v. Johnson, supra. Lord Campbell's statement of this maxim is:

"If there be a clear gift, it is not to be cut down by anything subsequent which does not with reasonable certainty indicate the intention of the testator to cut it down; but the maxim cannot mean that you are to institute a comparison between the two clauses as to lucidity." Randfield v. Randfield, 8 House of Lords Cas. 224, 235.

In ascertaining the intent of a testator as to the quantum of estate devised or bequeathed, it is important to keep in mind the distinction between "property" and "power." Such a distinction has been a fruitful source of discussion by the courts. Bradly v. Westcott, 13 Ves.Jr. 448; Denson v. Mitchell, 26 Ala. 360; Smith v. Bell, supra; McRee v. Means, 34 Ala. 349; Mason v. Pate's Ex'r, 34 Ala. 379; Banks v. Jones, 50 Ala. 480; Weathers v. Patterson, 30 Ala. 404; Gunter v. Townsend, supra; Mims v. Davis, 197 Ala. 88, 92, 72 So. 344. See Chewning v. Mason, 158 N.C. 578, 74 S.E. 357, 39 L.R.A. (N.S.) 805, and general authorities on testamentary power to create a remainder after life estate with absolute power of disposal, collected in 39 L.R.A. (N.S.) 805; Steiff et al. v. Seibert et al., 128 Iowa, 746, 105 N.W. 328, 6 L.R.A. (N.S.) 1186.

Of the difference between property and the exercise of executorial power, Mr. Justice Dupue has said:

"Counsel of the administrator contended that the superadded power either gave her an absolute estate in all the testator's personalty, or authorized her to make sale and conversion of the corpus of his personal estate at her own will and pleasure, and to take the proceeds thereof for her own benefit. His argument was rested upon the fact that the power to sell was given to her 'in case she should find it necessary or see fit to dispose of the same,' and the use of the words 'remaining at the decease of my wife,' in the power conferred upon his executors to sell after the death of his widow. In Downey v. Borden, 7 Vr. [ 36 N.J.Law] 460, it was held by this court, on a devise of lands expressly for life, that superadded words granting a power to sell in fee would not enlarge the life estate to a fee. The same rule of construction is applicable to bequests of personal estate. Dutch Church v. Smock, Sax. [ 1 N.J.Eq.] 148; Annin v. Vandoren, 1 McCart. [ 14 N.J.Eq.] 135. These cases were enunciations of common-law principles, which, in the absence of evidence to the contrary, must be assumed to be the law of California. The meaning of the testator in his will is apparent. For so much of his estate as he gives 'for the sole use and benefit of his wife to be under her control and used by her as she may see fit to use the same,' he expressly limits the time of her use and enjoyment, 'during the period of her natural life'; and he provides for the residue not only by the specific bequests, but also by a residuary disposition of the balance of his estate. There are no words in the will which authorize her to sell and dispose of the testator's property for her own use. On the contrary, the power of sale over his estate, real and personal, expressed in the will, is given to her as executrix, which implies a fiduciary disposition of the proceeds realized from the sales, inherent in the office, in virtue of which she was to exercise the power." Pratt v. Douglas, 38 N.J.Eq. 516, 533, 534.

We are not without decisions in this jurisdiction making the same distinction.

A will had conferred on Mrs. Crawford, executrix, "the privileges and rights of buying, selling and conveying any property" the testator then owned, of which Chief Justice Stone observed that it was "a very full power of disposition." It was contended that the power enlarged Mrs. Crawford's estate "into an absolute fee." Answering this, the Chief Justice said:

"We cannot agree to this, for two reasons: First, the will does not give Mrs. Crawford the individual, exclusive use and enjoyment. Its language

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