Maloney v. Johnson

• Decision Date: 18 April 1939
• Citation: 5 A.2d 660,24 Del.Ch. 77
• Parties: JAMES G. MALONEY, Administrator cum testamento annexo of the Estate of LILLIE A. GRAHAM, Dec'd., v. S. CARROLL JOHNSON, also known as CARROLL JOHNSON, HARRY L. JOHNSON, also known as HARRY JOHNSON, CORA T. JUMP, FLORENCE E. JUMP, HOWARD JOHNSON, MARY JOHNSON BARTON, BLANCHE R. GRAHAM MALONEY, also known as BLANCHE GRAHAM MALONEY, ETHEL JOHNSON RAPP, formerly ETHEL JOHNSON, FRANK JOHNSON and JOHN JOHNSON,
• Court: Court of Chancery of Delaware

5 A.2d 660

24 Del.Ch. 77

JAMES G. MALONEY, Administrator cum testamento annexo of the Estate of LILLIE A. GRAHAM, Dec'd., v. S. CARROLL JOHNSON, also known as CARROLL JOHNSON, HARRY L. JOHNSON, also known as HARRY JOHNSON, CORA T. JUMP, FLORENCE E. JUMP, HOWARD JOHNSON, MARY JOHNSON BARTON, BLANCHE R. GRAHAM MALONEY, also known as BLANCHE GRAHAM MALONEY, ETHEL JOHNSON RAPP, formerly ETHEL JOHNSON, FRANK JOHNSON and JOHN JOHNSON,

Court of Chancery of Delaware, New Castle

April 18, 1939

BILL OF INTERPLEADER and for the construction of the last will and testament of Lillie A. Graham, deceased.

Case heard on bill and the answers filed thereto by some of the defendants.

The facts will appear in the opinion of the court.

William Prickett, for complainant.

W Reese Hitchens, of the firm of Hering, Morris, James &amp Hitchens, for defendants S. Carroll Johnson, Cora T. Jump and Florence E. Jump.

Joseph S. Wilson, for defendant Albert L. Massey, guardian ad litem for Harry L. Johnson, also known as Harry Johnson, an alleged insane person, and guardian ad litem for John Johnson, a minor defendant.

OPINION

THE CHANCELLOR:

This is a bill to construe the will of Lillie A. Graham, late of the town of Dover. Mrs. Graham died on or about the 10th day of January, 1937, having first made and executed a paper writing, dated July 24, 1934, which purported to be her last will and testament, and which, after her death, was duly probated as such by the Register of Wills, in and for Kent County.

James A. Graham, the husband of the deceased, and the executor named in her will, died on June 15, 1937, before it had been probated, and letters of administration, c. t. a. on her estate were subsequently issued by the Register of Wills, in and for Kent County, to James G. Maloney, the complainant.

The gross estate of Mrs. Graham, at the time of her death, consisted of certain personal effects, all of which were specifically bequeathed by her, and of certain moneys on deposit to her credit in two accounts in the Farmers Bank, at Dover; the balance shown by her checking account in that bank at that time was $ 50.45, while the balance shown by her savings account was $ 3015.65. By a stipulation filed, it is agreed that she had substantially the same amount of money on deposit, and other property, when she executed her will.

In construing a will, the intent of the testatrix is the important question to be determined. Wilmington Trust Co. v. Bronxville Trust Co., Exr., et al., ante p. 64, 24 Del.Ch. 64, 5 A.2d 248. Ordinarily, such intent must be ascertained from the language of that instrument, when read as a whole, but surrounding facts and circumstances, which throw any light on it, are frequently important, and admissible evidence, when the will is, in any sense, ambiguous and uncertain as to its meaning. Sussex Trust Co. v. Polite, 12 Del. Ch. 64, 106 A. 54; Ferris, Adm'x., v. Ferris, 11 Del. Ch. 171, 98 A. 215; Knight v. Knight, 28 Del. 570, 5 Boyce 570, 96 A. 32; 1 Schouler on Wills, § 572; see, also, Colvocoresses v. Wasserman Co., 9 W. W. Harr. (39 Del.) 71, 196 A. 181. Such facts and circumstances are, however, admitted and considered by the court "to resolve what is uncertain, but not to change or contradict what is plain, nor to substitute or insert new matter * * *." 1 Schouler on Wills, § 572; see, also, Colvocoresses v. Wasserman Co., 9 W. W. Harr. (39 Del.) 71, 196 A. 181. This rule is applied in order that the court may put itself, as nearly as possible, in the position of the testatrix when she executed her will. 1 Schouler on Wills, § 572. Under it, evidence, as to the testatrix' family, and the nature, amount and character of her property, at the time her will was made, may be taken into consideration by the court, if it throws any light on her intent. Sussex Trust Co. v. Polite, et al., 12 Del. Ch. 64, 106 A. 54; Ferris, Adm'x., v. Ferris, 11 Del. Ch. 171, 98 A. 215; Himmel v. Himmel, 294 Ill. 557, 128 N.E. 641, 13 A. L. R. 608.

The first sentence of the will of Mrs. Graham provides:

"At my death I bequeath or will to my husband the interest on money in Farmers Bank Dover, Delaware his life time."

The next sentence provides:

"At his death it is then to be divided among or between my brothers and sisters and brothers and sisters heirs, S. Carroll Johnson, Harry L. Johnson, Cora T. Jump * * *, Florence E. Jump * * *, Howard Johnson, and Mary Johnson Barton, heirs of my brother Andrew W. Johnson, Blanche R. Graham Maloney heir of my sister Emma Johnson Graham."

That the word "it," as here used, is intended to refer to the whole of the money on deposit to the credit of Mrs. Graham in the Farmers Bank, at Dover, and not merely to the interest thereon, would seem to be apparent from the fact that there are no limitations providing for the use of that fund for life, or further bequests of it to persons, other than those named by the testatrix as the primary beneficiaries. At any rate, the bare gift of the use of or interest on a specified sum of money, without any further disposition of it, amounts to an absolute gift of that fund. Lorton, Adm'r. v. Woodward, Ex'r., 5 Del. Ch. 505; National Bank of Smyrna, Ex'r., v. Ireland, et al., 19 Del. Ch. 76, 162, 162 A. 54, A. 54; see, also, Wilmington Trust Co. v. Houlehan, 15 Del. Ch. 84, 131 A. 529; 69 C. J. 1453.

After the provisions above quoted, Mrs. Graham specifically bequeaths certain pieces of jewelry, and certain household goods and personal effects.

The will next provides:

"Two hundred dollars bequeathed for Harry Johnson's burial unless the Home takes care of his burial; then the two hundred dollars to be divided equally between his three heirs Ethel Johnson, Frank Johnson and John Johnson. Also three hundred dollars extra to be divided among Ethel Johnson, Frank Johnson, John Johnson, Harry Johnson's estranged wife is not to have any of the two hundred dollars left for Harry's burial."

The testatrix then further provides:

"I bequeath to Howard Johnson twenty-five dollars. I bequeath to Mary Johnson Barton twenty-five dollars. I bequeath to Blanche Graham Maloney two hundred dollars, * * *."

In the same sentence she then adds,

"The rest of my estate is to be divided equally between Carroll Johnson, Cora T. Jump and Florence E. Jump."

In the second sentence of her will, the testatrix provides that at the death of her husband the money in the Farmers Bank "is then to be divided among or between my brothers and sisters and brothers and sisters heirs," naming them.

It appears from a stipulation filed that of the persons named in that sentence, S. Carroll Johnson, Harry L. Johnson, Cora T. Jump and Florence E. Jump are brothers and sisters of Mrs. Graham; that Howard Johnson and Mary Johnson Barton are children of a deceased brother, Andrew W. Johnson, and that Blanche R. Graham Maloney is the only child of a deceased sister, Emma Johnson Graham.

It, also, appears in the same stipulation that Ethel Johnson, now Ethel Johnson Rapp, Frank Johnson and John Johnson, who are also described as heirs, are children of the said Harry L. Johnson, a brother of Mrs. Graham.

When the context requires it, the words "heir" and "heirs" are sometimes used in the sense of child, or children (Underhill on Wills, § 616); and that they are used in that sense in Mrs. Graham's will would seem to be apparent.

Harry L. Johnson survived the testatrix, and is still living, but in the latter part of the will his children are described as his heirs. As that word clearly means children in that part of the will, in the absence of anything to show a contrary intent, both the words "heir" and "heirs," as used in the first part of the will would seem to have the same meaning. Silvia v. Scotten, et al., 2 W....