Jennings v. Jennings

• Decision Date: 04 May 1945
• Citation: 299 Ky. 779,187 S.W.2d 459
• Parties: JENNINGS et al. v. JENNINGS et al. SAME v. JENNINGS' EX'R et al.
• Court: Kentucky Court of Appeals

187 S.W.2d 459

299 Ky. 779

JENNINGS et al. v. JENNINGS et al.

SAME v. JENNINGS' EX'R et al.

Court of Appeals of Kentucky

May 4, 1945

Appeal from Circuit Court, Shelby County; J. Wirt Turner, Judge.

Actions between Edward Jennings and others and C. L. Jennings and others and between C. L. Jennings and others and George W Jennings' executor and others involving construction of the will of George W. Jennings, deceased. From a judgment construing the will, Edward Jennings and others and C. L Jennings and others appeal.

Judgment reversed for proceedings consistent with opinion.

Leslie W. Morris and Marion Rider, both of Frankfort, for appellants Edward Jennings and others.

Kinsolving & Reasor, W. W. Jessee, Robert Matthews, and William Hays all of Shelbyville, and J. Ballard Clark, of LaGrange, for appellees C. L. Jennings and others.

STANLEY Commissioner.

This controversy over the construction of the will of the late George W. Jennings springs from different views as to what he meant by the words 'funds' and 'heirs' in the second paragraph of the third clause. His will is as follows:

'I declare this to be my last and only will, made in order to make disposition of my estate.

'1st. I decree that all my just debts be paid.

'2nd. That the Waddy Christian Church to receive $500. Georgia Summers to receive $1,000, Anna Swan to receive $1,000. Aline Fortwengler to receive $1,000. Verna Robertson to receive $200. Herbert Clark to receive $100. Marshall Clark to receive $50. Edward Jennings to receive $50. Sarah Clark to receive $500. Dora Clark to receive $500. Roy Frye to receive $100.

'3rd. I appoint William H. Nash as administrator to serve under bond fixed by the court and to receive the customery fee for al settlements.

'Any funds left after the above bequest have been satisfied I decree that it be equally divided among the above heirs and not on a percentage basis. However, if the estate fails to pay out I decree that the shortage be settled on a percentage basis.

'4th. All household goods evenly divided between Georgia Summers, Anna Swan and Aline Fortwengler.'

Considerable evidence was submitted to disclose the conditions surrounding the testator and the circumstances under which the will was prepared and executed; also evidence of his statements with respect to the disposition of his estate. The chancellor ruled the evidence tending to show his intention could not be considered, and construed the word 'funds' to embrace all of the testator's personal estate but not his realty, and the word 'heirs' as including only three of the devisees named in the second clause of the will who were his heirs at law. An appeal is prosecuted by all of the testator's heirs at law, who claim the entire estate as undevised except money on hand and a sufficiency of the proceeds of tangible personal property to make up the amount specifically devised. The three heirs named in the second clause also appeal, and insist that the will disposed of all the estate and that they are entitled to the residuary, both personal and real. The other devisees contend that the residuary was devised to all the persons named, the word 'heirs' meaning 'legatees.'

Able argument is made by the heirs that there is a latent ambiguity and this Court should extend the rule of admissibility of extraneous evidence relating to the construction of wills and hold that declarations of the testator with respect to his property and the persons he intended to have it, including his instructions to the draftsman of his will, are competent. We have long regarded as competent extrinsic evidence to describe the conditions surrounding the testator that the court as an interpreter might place itself in his position in order the better to appreciate his situation and to discern his intent as expressed by his language. Wheeler's Heirs v. Dunlap, 52 Ky. 291, 13 B.Mon. 291; Williams v. Williams, 182 Ky. 738, 207 S.W. 468; Thomas' Ex'r v. Marksbury, 249 Ky. 629, 61 S.W.2d 282; Cummings v. Nunn, 290 Ky. 609, 162 S.W.2d 213. We have also held acceptable evidence to identify the evisees or particular property where the language is obscure, or there is a latent ambiguity, such as where a description might apply to more than one person or one item of property. Eichhorn v. Morat, 175 Ky. 80, 193 S.W. 1013; Cummings v. Nunn, supra. But in this case there is no latent ambiguity and no confusion as to identity of any devisee or particular property. What the testator meant by 'funds' and 'above heirs' presents patent but not latent ambiguities. Our jurisprudence has long refused to consider evidence of statements of a testator as an aid to ascertaining an intention not expressed, or one contrary to that which the language used reveals. Wheeler's Heirs v. Dunlap, 52 Ky. 291, 13 B.Mon. 291; Cochran v. Lee's Adm'r, 84 S.W. 337, 27 Ky.Law Rep. 64; Marquette v. Marquette's Ex'rs, 190 Ky. 182, 227 S.W. 157; Muth v. Goins, 199 Ky. 321, 250 S.W. 995. It can not be received for the purpose of enlarging or diminishing the estate or interest devised or to vary the legal effect of the language used in this respect. Long v. Duvall, 45 Ky. 219, 6 B.Mon. 219; McCauley v. Buckner, 87 Ky. 191, 8 S.W. 196; Martin v. Palmer, 193 Ky. 25, 234 S.W. 742. Testimony of the one who drew the will as to the testator's meaning of ambiguous words or of his intention can not be heard. Poore v. Poore, 226 Ky. 668, 11 S.W.2d 721. This is so as to the meaning of the word 'heir'. Annotations, 94 A.L.R. 112. It is different concerning a latent ambiguity. Annotation, 94 A.L.R. 286. To hold otherwise would often, and in a large measure always, result in establishing an oral will. The wisdom of the rule of exclusion is exemplified in the present case. The rejected testimony when taken as a whole is contradictory and does not clearly manifest a purpose or intention of the testator prior to or in the preparation of his will that all of his heirs at law should have his entire estate, except what he specifically devised, or what he intended to include in the residuary provision.

We briefly state the situation which the acceptable evidence describes.

The testator was about 73 years old when his will was written in April, 1942, which was a few months after the death of his wife. He died 10 months later. He never had any children. He was survived by a brother and sister and numerous nephews and nieces, the children of five deceased brothers and sisters. Herbert Clark, Edward Jennings, and Roy Frye, named as specific legatees, were nephews and heirs. Verna Robertson was a niece, but her father was still living. Georgia Summers, Anna Swan, and Aline Fortwengler were half-nieces of his deceased wife. Marshall Clark, Sarah Clark and Dora Clark were friends who lived nearby. One or more of them had stayed with the testator and his wife at times and had always been considerate of them. The estate consists of personal property worth about $20,000 and a farm near Shelbyville, worth perhaps $15,000. When the will was written the testator had about $1300 in bank deposits, and when he died about $3800.

Mr. Jennings had little schooling, but was by no means illiterate. The will was prepared by his physician, Dr. Nash, who testified that the language of the instrument was dictated by the testator. The confusing language of the two paragraphs of the third clause was dictated in response to the doctor's inquiry after the preceding part had been written as to what he wanted done if his estate 'does not pay out,' or 'if it is more'--the reference being to the specific bequests.

The argument of the heirs with respect to the meaning of the phrase 'funds left after' the specific bequests and 'above heirs' invokes the following rules of construction: (1) The presumption that testator did not intend to disinherit his heirs or next of kin, but did intend that it should pass to them in accordance with the statute of descent and distribution unless there is manifest intention to the contrary; (2) There can be no implication of disposition of property not expressly mentioned unless it is necessary, or unless the implication arising from the instrument is so strong that a contrary intention can not reasonably be supposed to have existed in the testator's mind; (3) Personal estate is the primary and only fund for the payment of legacies, unless the real estate is expressly charged therewith; (4) The testator is presumed to know the amount and character of his property, and in this instance he knew that his personal estate was much more than enough to satisfy the specific bequests, which aggregated only $5000; (5) He did not give his executor power or direction over his real estate, which, in the absence of any reference to it, negatives the idea of a purpose to include it; (6) And where there is a conflict between the presumption against intestacy and the presumption against disinherison, the latter prevails. Some of these rules are referred to in Dodd v. Scott, 145 Ky. 310, 140 S.W. 528; Poore v. Poore, 226 Ky. 668, 11 S.W.2d 721; Lane v. Railey, 280 Ky. 319, 133 S.W.2d 74, and Ward v. Curry's Ex'r, 297 Ky. 420, 180 S.W.2d 305.

It is conceded that the word 'funds' has a variety of definitions, and the sense in which it is employed is to be gathered from the context of the instrument. 37 C.J.S., Fund or Funds, p. 1401; Burdine v. White, 173 Ky. 158, 190 S.W. 687. It is insisted that, when this will is regarded in the light of the presumptions, it manifests an intention to embrace only money, and a sufficiency of tangible personal property to satisfy the specific bequests; therefore, that the balance passes as intestate property.

It seems to us that these rules are not applicable and the deductions not sound. It is familiar...