Marquette v. Marquette's Ex'rs

• Decision Date: 14 January 1921
• Parties: MARQUETTE v. MARQUETTE'S EX'RS ET AL.
• Court: Kentucky Court of Appeals

227 S.W. 157

190 Ky. 182

MARQUETTE v. MARQUETTE'S EX'RS ET AL.

Court of Appeals of Kentucky.

January 14, 1921

Appeal from Circuit Court, Pendleton County.

Suits by John L. Marquette against J. J. Marquette's executors and others. Judgment of dismissal, and plaintiff appeals. Affirmed.

C. C Adams, of Williamstown, for appellant.

Swinford & Barker, of Falmouth, for appellees.

THOMAS J.

J. J Marquette died testate and a resident of Pendleton county. His will, which was probated after his death, named the appellees and defendants below J. W. and L. R. Marquette as executors thereof, and at the time designated in the will (which was after the widow's death) they qualified as such. After devising all of his property, both real and personal, to his wife for life, and making a specific devise to his son Columbus, the will contains this residuary clause:

"To the rest of my children, the remainder of my property, less three hundred dollars ($300.00), which is to be used to purchase a monument for myself and wife, both personal and real is to be divided equally among them after deducting any indebtedness they may owe me."

The testator had by his wife, who survived him and to whom he was lawfully married, 11 children, and under the terms of the will the property mentioned in the residuary clause would be divided into ten equal parts. The executors, after collecting all the assets and paying the debts and specific devises, had a balance in their hands for distribution the sum of $6,455.19, which they divided equally among the 10 children entitled to share under the residuary clause. The testator owned several tracts of land, none of which had been divided at the time of the filing of these two suits by appellant and plaintiff below John L. Marquette, against the executors and the other children of the testator, by one of which he sought to assert his right to a one-eleventh interest in the personalty of the testator, and by the other one he sought to assert a similar interest in the real property and to have it sold for the purpose of division. The two suits were consolidated and tried together in the court below and will be so disposed of in this court. In his petitions the plaintiff alleged that he was a child of the testator and entitled under his will to share in his estate with the other children. The answer denied all the allegations of the petition, and alleged in substance that plaintiff was the child of a woman to whom the testator was never married and with whom he never cohabited, nor did he ever recognize her as his wife, and that the only woman to whom the testator was ever married was the mother of defendants, by whom he had the children among whom the executors had divided the personalty and the only ones who were entitled thereto or who were entitled to any interest in the realty. A demurrer to the answer was overruled, and a reply filed by plaintiff admitted his illegitimacy, but alleged in a second paragraph that:

"The plaintiff, John L. Marquette, states that a short while after he was born, and while he was an infant of very tender years, his father, the said John J. Marquette, gave unto the plaintiff his name, took him into his home and family, and ever afterwards acknowledged, claimed, and recognized the plaintiff to be his own truly begotten child; that his father, J. J. Marquette, his father's wife, the mother of defendants, and his father's said other children, both publicly and privately, on all occasions, and in every conceivable way, constantly and continuously acknowledged, recognized, and held the plaintiff out to all persons to be a child of the said John J. Marquette, and a brother of his said other children; that he was nurtured, clothed, sheltered, taught, and educated at school and church, and always given a full share and status in his father's home and family, and socially, and in every other way, accorded the same privileges, protection, care, attention, and admonition as his father's said other children; and the plaintiff states that he continued to reside with his father and his father's wife and other children and did live with them and made his home therewith continuously until long after he attained his age of majority, and during all of said period, the plaintiff states, working with his father's said other children, that he loyally and devotedly assisted his father in the accumulation of the estate and property left by him for distribution, on his decease.

The plaintiff states that his father, John J. Marquette, never ceased to acknowledge, recognize, and claim the plaintiff to be one of his children, but that until the time of his death he constantly regarded the plaintiff to be his own child, always recognized and referred to the plaintiff as one of his children, and often stated to this plaintiff, and on divers occasions frequently declared to many persons, both before and after the making of his said last will and testament, that it was his settled purpose and intention to have this plaintiff participate and share equally with his said other children in the distribution of his property and estate, and the plaintiff avers that it was intended by his father in the execution of the said instrument and testament to give to this plaintiff the same share in his said estate that he gave to the other children therein."

The demurrer filed by defendants to the reply was sustained, and, plaintiff declining to plead further, his petitions were dismissed, and to reverse that judgment he has appealed.

The question very sharply presented is, whether it is competent to show by extrinsic evidence that the testator meant by the expression "my children" to include an illegitimate child, or whether it, standing alone, without anything appearing in the will to the contrary, will be conclusively presumed to embrace only legitimate children? In answering the question it is indispensably necessary to remember that the cardinal rule for the interpretation of wills, everywhere recognized, is to ascertain and administer the intention of the testator as gathered from the entire will, or, as has been sometimes expressed, from its "four corners." Shields' Executor v. Shields, 185 Ky. 249, 214 S.W. 907; Radford v. Fidelity & Columbia Trust Co., 185 Ky. 453, 215 S.W. 285; Hughes v. Cleveland Jewish Orphanage Asylum, 184 Ky. 461, 212 S.W. 428; Sauer v. Taylor's Executor, 184 Ky. 609, 212 S.W. 583; Greenwell v. Whitehead, 184 Ky. 74, 211 S.W. 411; Phelps v. Stoner's Adm'r, 184 Ky. 466, 212 S.W. 423; White v. White, 150 Ky. 283, 150 S.W. 388; Eichorn v. Morat, 175 Ky. 80, 193 S.W. 1013; Wickersham v. Wickersham, 174 Ky. 604, 192 S.W. 688; Fowler v. Mercer's Executor, 170 Ky. 353, 185 S.W. 1117; and Prather v. Watson, 187 Ky. 709, 220 S.W. 532. But the intention of the testator which the court must ascertain from the will and administer is that which is expressed by what he did say, and not what he may have mentally entertained and intended to say, but did not. Shields, Wickersham, Fowler, Mercer, Eichorn, and Prather Cases, supra, and 40 Cyc. 1386, 1387. In other words, the intention which the court seeks is the one which is manifested by the language which the testator employed in drafting his will, and in arriving at the meaning of his language the usual, primary, and commonly understood signification of the words employed will be given to them, unless some contrary signification, either expressly or by necessary implication, appears from the whole will. Compton v. Moore, 167 Ky. 657, 181 S.W. 360; Dickson v. Dickson, 180 Ky. 423, 202 S.W. 891, L.R.A. 1918F, 765; and 40 Cyc. 1396. This rule is thus stated in the volume of Cyc. referred to:

"A testator is presumed to use the words in which he expresses himself in his will in their primary or ordinary sense, and in construing the will the words employed are to be taken in that sense, unless it is manifest from the context of the whole will, or from the subject-matter, that the testator intended to use them in a different sense, or unless a reading of the words in their primary or ordinary sense will lead to some absurdity, repugnancy, or inconsistency with the declared intention of the testator as ascertained from the whole will, in which case the natural and ordinary meaning of the words may be modified, extended, or abridged. Where the words, when given their natural, ordinary, or popular meaning, are plain and unambiguous, and show a clear intention on the part of the testator, they must be given that meaning notwithstanding their effect, and such meaning cannot be departed from for the purpose of giving effect to what it may be supposed was the intention of the testator, or merely because they lead to consequences which are capricious or even harsh or unreasonable."

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