Jennings v. Jennings; Same v. Jennings' ex'R

• Decision Date: 04 May 1945
• Citation: 299 Ky. 779
• Parties: Jennings et al. v. Jennings et al. Same v. Jennings' Ex'r et al.
• Court: United States State Supreme Court — District of Kentucky

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.

1. Wills. — In construing a will, extrinsic evidence to describe the conditions surrounding testator is competent so that court may place itself in testator's position in order the better to appreciate testator's situation and discern his intent as expressed by will.

2. Wills. — Extrinsic evidence is admissible to identify the devisees or particular property where language of will is obscure or there is a latent ambiguity, such as where a description might apply to more than one person or item of property.

3. Wills. — A will making special bequests and providing that any "funds" left after such bequests have been satisfied should be equally divided among the "above heirs" and not on a percentage basis presented patent and not latent ambiguities with respect to what was meant by the quoted words, and evidence of testator's

declarations with respect to his property and the persons he intended to have it, including instructions to draftsman of will, could not be considered in ascertaining such meaning.

4. Wills. — Evidence of statements of a testator is not admissible as an aid to ascertaining an intention not expressed or one contrary to that which language used reveals, or for the purpose of enlarging or diminishing the estate or interest devised or to vary the legal effect of the language used in such respect.

5. Wills. — Testimony of draftsman of will as to testator's meaning of ambiguous words or of his intention is inadmissible.

6. Wills. — The word "funds" has a variety of definitions and the sense in which it is employed is to be gathered from the context of instrument.

7. Wills. — A will is to be taken as a whole or by the four corners and if from such a consideration the intention of testator can be ascertained from the face of will, presumptions and other rules of interpretation should not be used.

8. Wills. — The word "estate", in absence of any limitation by the context of will, means all property of any kind.

9. Wills. — The word "fund" or "funds" in common speech suggests money, yet assets of an estate constitute a "fund" in the hands of administrator or executor and the word may be used in wills, especially those prepared by laymen, in such a comprehensive sense as to include everything testator leaves.

10. Wills. — Where will declared it was made to make disposition of testator's estate and after making 11 special bequests provided that any "funds" left after such bequests were satisfied should be equally divided among above heirs, but that if estate failed to pay out, shortage should be settled on percentage basis, quoted word was used to include real estate and testator thereby disposed of his entire estate, realty as well as personalty, and not merely of money on hand and sufficient personalty to pay special bequests.

11. Wills. — "Heirs" will be regarded in its technical prima facie meaning and not a secondary meaning of devisees or legatees, unless context of will, read in the light of the circumstances, indicates a different intention.

12. Wills — A will drawn by a layman must be construed as a layman would construe it, or, at least, the language thereof will be regarded as used in its popular rather than in its technical meaning.

13. Wills. — The word "heirs" technically denotes and is to be construed as meaning those who take decedent's estate by inheritance, according to statute, or more strictly, as those who take real estate, those inheriting personal property being "distributees."

14. Wills. — A surviving wife or husband, except in a special and limited sense, is not an "heir", but quoted word when used in a will

may be construed in the light of the whole instrument as including such surviving wife or husband or the children of a living person.

15. Wills. — In construing wills, the word "heir" is given a liberal meaning to effectuate testator's intention and if it appears from reading of the will in light of the circumstances surrounding testator, or other expressions in instrument, that testator used quoted word other than in its technical or legal acceptation, such intention must prevail, expansion of the meaning of quoted word to include persons who are neither blood relatives nor next of kin being permissible.

16. Wills. — Where will, drawn by laymen and containing numerous misuses of technical terms, after making special bequests to a church and 10 individuals only four of whom were related to testator by consanguinity provided for equal division of residuary estate among "above heirs" and settlement of any deficiency as respects special bequests on percentage basis, testator used quoted words as meaning "above legatees" and bequeathed residuary estate to be divided per capita among the named beneficiaries of special bequests, including the church, and not to all of testator's heirs nor to such named beneficiaries only as were his heirs at law.

17. Wills. — Where construction of will was a branch of settlement of estate, costs would be taxed against executor.

Appeal from Shelby Circuit Court.

Leslie W. Morris and Marion Rider for appellants Edward Jennings and others.

Kinsolving & Reasor, W.W. Jesse, Robert Matthews, William Hays and J. Ballard Clark for appellees C.L. Jennings and others.

Before J. Wirt Turner, Judge.

OPINION OF THE COURT BY STANLEY, COMMISSIONER.

Reversing.

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 customary fee for all 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 devisees 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...