Mastin v. First Nat. Bank of Mobile

• Decision Date: 05 August 1965
• Docket Number: 1 Div. 253,Nos. 1,s. 1
• Citation: 278 Ala. 251,177 So.2d 808
• Parties: Eleanor Chase MASTIN et al. v. FIRST NATIONAL BANK OF MOBILE, etc., et al. Div. 253,-A.
• Court: Alabama Supreme Court

Page 808

177 So.2d 808

278 Ala. 251

Eleanor Chase MASTIN et al. v. FIRST NATIONAL BANK OF MOBILE, etc., et al.

Nos. 1 Div. 253, 1 Div. 253-A.

Supreme Court of Alabama.

Aug. 5, 1965.

Thornton & McGowin, Mobile, for appellants.

Lyman F. Holland, Jr., Chas. B. Arendall, Jr., Geo. E. Stone, Jr., Inge, Twitty, Duffy & Prince, Ralph Kennamer and Vincent F. Kilborn, Mobile, for appellees.

MERRILL, Justice.

These appeals are from decrees construing the wills of Dr. William McDowell Mastin, deceased, and of his unmarried daughter, Zemma Crawford Mastin, deceased. The reporter will include certain designated items from these wills in the report of the cases.

The appellants here are the widow and children of Dr. Mastin's nephew, Edward Vernon Metcalfe Mastin, the devisee mentioned in Item Twenty-Second of his will. The appellees are the executor Bank, certain devisees, legatees and next of kin.

The First National Bank of Mobile, as executor of the wills of Dr. Mastin and his daughter Zemma, filed a bill of complaint praying that the court interpret and determine the validity and meaning of Items Ninth and Twenty-Fourth of Dr. Mastin's will, and Articles Second and Twelfth of Zemma's will, in order that the executor 'may administer the wills of Dr. Mastin and Zemma Mastin in such a manner as to effectuate the true intentions of both testators.' This bill was filed on December 14, 1962, and after appropriate pleadings, a hearing was had in April and May, 1964, and the final decrees in 1 Div. 253 and 1 Div. 253-A were rendered on June 30, 1964.

We consider first the decree in 1 Div. 253-A because a determination of the validity of the City of Mobile trust, a part of that decree, will also be determinative of appellants' status and claims because that trust consists of the residue of both the estates after the payment of all other devises. The decree also holds valid a $100,000 Rotary Club trust, but we defer discussion of it until later.

The pertinent parts of the decree in 1 Div. 253-A are that Dr. Mastin died on February 3, 1933, leaving his widow and one adult, unmarried daughter Zemma; that his will was duly probated; that Zemma and First National Bank of Mobile were appointed executors under the will; that the widow died intestate in December, 1938, and Zemma died testate on July 6, 1962, leaving no lineal descendants surviving her; that all of Dr. Mastin's property was not disposed of by his will, but under the laws of intestacy, became vested in his daughter Zemma and, upon her death, became a part of her estate; and that 'Item Twelfth of the last Will and Testament of the said Zemma C. Mastin establishes and creates a valid trust for the use and benefit of the respondent City of Mobile to consist of the net remainder and residue of the estate of Miss Mastin, real, personal and mixed, after providing for the charitable bequest referred to in Paragraph 2 above (The Rotary Trust) and the specific bequests provided for in her said Will and the Codicils thereto, and the payment of the costs of administration of this proceeding, including the attorney's fees hereinafter set forth, and it is hereby directed that said trust fund shall be used for the purpose of carrying out the terms and conditions of said trust for the use and benefit of the Respondent City of Mobile as expressed in Item Ninth of the Will of Dr. Mastin and Item Twelfth of the Will of Zemma Crawford Mastin, deceased, which fund shall be administered in accordance with the terms and provisions of said Items Ninth and Twelfth for the purpose of constructing and completing one and the same building under the terms provided for in the respective Items of the Wills of the two decedents, and in view of the fact that the City of Mobile, Alabama, has already constructed a public auditorium in said City of Mobile, the said remainder shall be applied to the erection of an important building in the City of Mobile, Alabama, and that, in compliance with the above referred to respective Twelfth Item of her said Will, this Court does hereby name and appoint a committee of three prominent businessmen of the City of Mobile, namely, W. L. Hammond, J. Finley McRae and Cabell Outlaw, Jr., to act with the said The First National Bank of Mobile jointly in carrying out the said provisions of the said Wills with respect to determining the character or form of the said important building in the City of Mobile, Alabama; PROVIDED, HOWEVER, THAT THE NAMED COMMITTEE, together with the First National Bank of Mobile, Alabama, shall report to the Circuit Court of Mobile County, Alabama, of its determination or selection of the important building to be erected, but such consultation or other activity shall be exclusive of this Final Decree, and shall in no way affect the status of this Decree as being final.'

Appellants assigned as error the holding that the trial court erred in failing to hold that the residue of Zemma's estate was undisposed of by her will; and that Item Twelfth of Zemma's will created a valid trust for the use and benefit of the City of Mobile.

Dr. Mastin was a successful physician practicing in Mobile. He and his wife had three children. A son died at the age of nine in 1892, and a daughter aged five died in 1893. Zemma, the other daughter, never married and survived both her parents.

At Dr. Mastin's death in 1933, his estate was worth about $285,000. Zemma had an estate in her own name worth over $174,000 prior to the time Dr. Mastin made his will. The bequests in Item Seventeenth and other small bequests were paid in 1933, and the bequests to Spring Hill College, $15,000, (Item 16), and the University of Pennsylvania, $10,000, (Item 25), were paid in 1936, but after these payments his estate was worth over $350,000. In April, 1964, both estates aggregated over $750,000.

During the life of Dr. Mastin's widow, she and Zemma never did anything about effectuating Item Twenty-Fourth of his will, and after the widow's death, his executors, Zemma and the First National Bank of Mobile, did not get past the discussion state. Subsequent to Zemma's death, the bill in this cause was filed by the Bank seeking a construction of both wills. The contested sections are ambiguous and the surviving executor was well advised in seeking a construction of the will.

At the conclusion of the hearing, the beneficiaries under the contested items, City of Mobile, Providence Hospital and the Rotary Group, through their attorneys, entered into a stipulation to the effect that, so far as they were concerned, the trial court could enter a decree that the Rotary Trust under Item Second of Zemma's will would be recognized in the amount of $100,000; that a trust under Item Twenty-Fourth of Dr. Mastin's will be recognized to Providence Hospital in the amount of $50,000, and that the trust in the amount of the residuary estate of both Dr. Mastin and Zemma Mastin be recognized in favor of the City of Mobile for that balance.

We approach the questions to be decided with certain principles that are settled in this state:

(1) The intention of the testator is always the polestar in the construction of wills, and the cardinal rule is to ascertain the intention of the testator and give it effect if not prohibited by law. Betts v. Renfro, 226 Ala. 635, 148 So. 406; O'Connell v. O'Connell, 196 Ala. 224, 72 So. 81.

(2) The intention of the testator may be ascertained not only by the writing itself, but from the light of attending facts and circumstances. Wiggins v. Wiggins, 241 Ala. 333, 2 So.2d 402; Patterson v. First National Bank of Mobile, 261 Ala. 601, 75 So.2d 471, and cases there cited.

(3) And in arriving at that intention, the court should consider the instrument as a whole. Wilson v. Skelton, 262 Ala. 504, 80 So.2d 633; Smith v. Nelson, 249 Ala. 51, 29 So.2d 335.

(4) In construing a trust created by a will, where the trust is susceptible to more than one construction, the court will favor that interpretation of the will which will make the trust valid and effective. Ramage v. First Farmers & Merchants Nat. Bank of Troy, 249 Ala. 240, 30 So.2d 706; Thurlow v. Berry, 247 Ala. 631, 25 So.2d 726.

(5) Charitable trusts are especially favored in equity, and all reasonable intendments, consistent with the terms and purpose of the gift, will be made in support of their validity. Sparks v. Woolverton, 210 Ala. 669, 99 So. 102; and courts of equity 'will sustain them by the application of the doctrine of equitable approximation, if need be.' Noble v. First National Bank, 236 Ala. 499, 183 So. 393; Henderson v. Troy Bank & Trust Co., 250 Ala. 456, 34 So.2d 835.

We think there can be little question but that Dr. Mastin intended to provide for the care and maintenance of his wife and daughter, and that he thought there would be more than enough property to do this, and that there would be enough over and above that care and maintenance, and the special bequests he had made, to provide a wing, bay or 'pavilion' for Providence Hospital, where he preferred to practice, to provide a fund for helping the Rotary Club in its work for crippled children, and to leave what was left for a building for the use of the City of Mobile.

Zemma Mastin's will likewise reflects an intention to carry out the provisions of her father's will which she and the other executor, First National Bank of Mobile, had never effectuated.

We do not understand that appellants contest these evidenced intentions, but that the words Dr. Mastin and his daughter used in their wills failed to effect their intentions.

We revert to appellants' assignment of error that the court erred in failing to hold that the residue of Zemma's estate was undisposed of by her will.

It should be borne in mind that Zemma had made other bequests of both small and substantial sums before she reached Item Twelfth of her will, which either did or did not dispose of the residue of her estate.

There is no equivocation in the words of...