Kimbrough v. Dickinson

• Decision Date: 17 January 1946
• Docket Number: 1 Div. 241.
• Citation: 24 So.2d 424,247 Ala. 324
• Parties: KIMBROUGH v. DICKINSON.
• Court: Alabama Supreme Court

24 So.2d 424

247 Ala. 324

KIMBROUGH v. DICKINSON.

1 Div. 241.

Supreme Court of Alabama

January 17, 1946

Roy W. Kimbrough, of Thomasville, John A. Dickinson, of Prattville, and Hill, Hill, Whiting & Rives, of Montgomery, for appellants.

Adams & Gillmore and Paul S. Jones, all of Grove Hill, for appellee.

D. M. Powell, of Greenville, amicus curiae.

FOSTER Justice.

This is an appeal from a decree overruling a demurrer to a bill in equity filed by the executrix of the will of Shelton C Dickinson, deceased. Complainant also sued individually and as a legatee under the will. The purpose of the bill is to have construed the will, on account of an ambiguity in the third paragraph of it, as to whether the devise is to a class and was intended for the survivor of it living at the time of the death of testator. The devise is to his 'nearest living kin--my beloved brother and sister Robert L. Dickinson and Maude Dickinson. These two to share alike in all property.' The will was dated June 20, 1939, and testator died December 21, 1943. Neither testator nor Maude Dickinson had married. Robert died September 5, 1939. Robert had married and had five children; and his wife had been dead since 1921. Robert and his children, Maude and testator made up a family group, and lived in the old home at Grove Hill owned by testator and Maude. Robert's children were members of the group, though three of them had married and moved off. Testator was successful in business at Thomasville, sixteen miles away; but he was virtually a member of the household. Robert had been in ill health and eventually had both feet amputated. Practically all the medical and hospital expenses were borne by testator. His relations with the other next of kin were not unpleasant, but not intimate, and such as obtains with friendly acquaintances of no kin, and a few of them he did not know. There were about forty in all. They were descendants of brothers and sisters, mostly of the half blood. Testator himself drafted the will without the aid of counsel.

When a trustee or executor seeks a construction of the trust instrument or will, equity will take jurisdiction if such instrument is ambiguous and uncertain in its meaning, or difficult and embarrassing in its interpretation. Gilmer v. Gilmer, 245 Ala. 450, 17 So.2d 529; Wilson v. Rand, 215 Ala. 159, 110 So. 3; Carroll v. Richardson, 87 Ala. 605, 6 So. 342; Sellers v. Sellers, 35 Ala. 235; Hoglan v. Moore, 219 Ala. 497, 122 So. 824; First National Bank v. Sheehan, 220 Ala. 524, 126 So. 409.

But this does not mean that equity jurisdiction is withheld when the ambiguity is latent and not apparent on the face of the instrument. 69 Corpus Juris 145, 146 note 32, 153 note 91; Patch v. White, 117 U.S. 210, 6 S.Ct. 617, 29 L.Ed. 860; Achelis v. Musgrove, 212 Ala. 47, 101 So. 670. As 'a latent ambiguity is only disclosed by extrinsic evidence, it may be removed by extrinsic evidence.' Patch v. White, supra [117 U.S. 210, 6 S.Ct. 619.] But it cannot be said to be an ambiguity if its language is not susceptible of more than one construction. Parol evidence 'is never admissible to show terms the testator intended to use,' but did not use. Achelis v. Musgrove, supra [212 Ala. 47, 101 So. 672]; Snellings v. Downer, 193 Ga. 340, 18 S.E.2d 531, 139 A.L.R. 860.

The rule applies to other written instruments, to the effect that latent ambiguities may be made certain by proof of concurrent collateral material facts and circumstances if sufficient to that end. Hereford v. Hereford, 131 Ala. 573, 578, 577, 32 So. 620; Webb v. Elyton Land Co., 105 Ala. 471, 18 So. 178; DeJarnette v. McDaniel, 93 Ala. 215, 9 So. 570; Chambers v. Ringstaff, 69 Ala. 140.

And if in the light of these circumstances it is certain in its meaning and application, the court cannot go further or declare that the grantor or testator meant something different from what he expressed. City Bank & Trust Co. v. McCaa, 213 Ala. 579, 105 So. 669; Baker v. Hendricks, 240 Ala. 630, 200 So. 615; Spencer v. Title G. & T. Co., 222 Ala. 485, 132 So. 730.

We must place ourselves in the position of the testator and consider his situation at the time he executed the will to arrive at his intent from the 'four corners of the instrument,' and determine whether it is ambiguous, Meglemry v. Meglemry, 222 Ala. 229, 231, 131 So. 906; Achelis v. Musgrove, supra,--although the language of the will is controlling when it has a clear meaning (Betts v. Renfro, 226 Ala. 635, 148 So. 406), and all rules of construction must give way to that meaning. O'Connell v. O'Connell, 196 Ala. 224, 72 So. 81.

The question before us, and the only question, is whether the language of the will is reasonably susceptible of two constructions in the light of the circumstances alleged in the bill to exist. We will undertake to show that the will is not on its face ambiguous, and that it is not rendered so by the circumstances alleged in the bill. When the will was prepared by one not versed in legal terminology, the terms used should be treated as they are applied in common parlance.

The words 'my nearest living kin,' are used, and the intent of the testator in so doing gives rise to the controversy here. He did not use ' next of living kin.' Next of kin has been said by this Court in the matter of descent and distribution to mean those entitled to inherit under the law, whether or not there is a blood relation; whereas, in wills it means those who according to blood and without reference to statutes are closest in degree of relationship, reckoned on the ascending and descending process of the civil law. Pinkston v. Semple, 92 Ala. 564, 9 So. 329; section 4, Title 16, Code of 1940.

Technically it is said that courts almost universally decline to draw a shade of difference between 'next of kin' and 'nearest kindred,' Godfrey v. Epple, 100 Ohio St. 447, 126 N.E. 886, 11 A.L.R. 317; Swasey v. Jaques, 144 Mass. 135, 138, 10 N.E. 758, 762, 59 Am.Rep. 65--and each means, in construing a will 'the nearest degree of consanguinity.' Blagge v. Balch, 162 U.S. 439, 16 S.Ct. 853, 40 L.Ed. 1039, 11 L.R.A. 315, 317. And such was the established English interpretation. 2 Jarm. Wills, 5th Ed., 108, 109.

Section 5, Title 16, Code, places relationship of the half blood as equal to that of the whole blood, except as to certain ancestral property.

Brothers and sisters of the half blood are in the same degree as those of the whole blood, except as to ancestral property received from an ancestor, not common to them all. Johnson v. Copeland's Adm'r, 35 Ala. 521; Stallworth v. Stallworth, 29 Ala. 76. And the children of a deceased brother of the half blood take the share of their parent, and are in the same degree by representation under the law of descent and distribution, Stallworth v. Stallworth, supra; sections 2 and 3, Title 16, Code,--but not under the ascending and descending rule of the civil law applicable in Alabama. Code, section 4, Title 16; Purcell v. Sewell, 223 Ala. 73, 134 So. 476; Coleman v. Foster, 112 Ala. 506, 20 So. 509.

The authority by which the children of a deceased brother or sister (whether the whole or half blood) are in the same degree of relationship as their parent would be if living, is by virtue of the principle of representation under sections 2 and 3, Title 16, Code. But that situation is statutory, and not according to the civil law, to determine the degree of relationship on the ascending and descending theory. According to that theory, the children of a deceased brother would not be in the same degree of relationship as their parent. Coleman v. Foster, supra. There would be one degree of difference. Whereas they are in the same degree by right of representation under the statutory law of descent and distribution. Pinkston v. Semple, supra; Stallworth v. Stallworth, supra.

In this case the bill alleges that the testator himself wrote the will without the aid of counsel, so that in using the words 'nearest living kin,' he was not speaking with any technical knowledge, but such as a man of ordinary intelligence would understand the meaning of those words. It seems to us that one of ordinary intelligence using those words would understand them as said to be applicable to wills in Pinkston v. Semple, supra, not now considering the matter of the half blood. That is to say, that one would not ordinarily understand that children of a deceased brother or sister are as closely related to testator as his living brother or sister. And while the statute also places a brother and sister of the half blood in the same degree of relationship as those of the whole blood, except as to property which was inherited from the parent who was not common to all; that is by statute, and it is not to be supposed that its meaning is fully understood by one not versed in the law.

The bill shows that the testator had had ten brothers and sisters of the half blood, all were dead when the will was executed, some or all leaving children, and there had been five of the whole blood, including himself who was the youngest, two of whom were then dead leaving children; that he did not inherit the property; that he had only one brother and one sister of the whole blood living at that time. They were named as his 'nearest living kin.' That brother died before testator, leaving children. If the legacy was to him personally, not merely to a class of which he was a member, the legacy lapsed and was subject to distribution among the next of kin of the testator, because the legatee was not a descendant of testator. Section 16, Title 61, Code; Morgan County Bank v. Nelson, 244 Ala. 374, 13 So.2d 765; Hamlet v. Johnson, 26 Ala. 557.

When the testator said in his will 'my nearest living kin--my beloved brother and sister Robert...