McAllister v. Long

• Decision Date: 02 July 1952
• Docket Number: No. 34386,34386
• Citation: 206 Okla. 623,246 P.2d 352
• Parties: McALLISTER et al. v. LONG et al.
• Court: Oklahoma Supreme Court

Page 352

246 P.2d 352

206 Okla. 623

McALLISTER et al. v. LONG et al.

No. 34386.

Supreme Court of Oklahoma.

July 2, 1952.

Syllabus by the Court.

1. The object and prime purpose in the construction of any will is to arrive at and give effect to the intention of the testator; and in ascertaining such intention the will is to be construed as a whole and the several provisions thereof and expressions therein in their relation to one another, taking into view the circumstances under wich it was made.

2. Authority to 'use' does not grant the right to sell or dispose of, but means the user is to enjoy, hold, occupy or have in some manner the benefit thereof; if real estate, the right of occupancy or cultivation or the rent that can be obtained from its use.

Herman S. Davis, Mangum, for plaintiffs in error.

Joe W. Whitten and Whitten & Whitten, Oklahoma City, for defendants in error.

PER CURIAM.

Charles A. McAllister, a resident of Greer County, Oklahoma, died testate on the 21st day of April, 1945. The last will of said testator was executed on the 25th day of November, 1944. Letters of administration with will annexed were issued to Roy B. McAllister, a son of the deceased, on the 14th day of September, 1948, by the county court of Greer County, Oklahoma.

The general inventory and appraisal filed in said cause listed several farms aggregating 450 acres appraised at $12,500.

The main question to be determined in this appeal is whether the will under consideration devised a life estate to Fannie M. McAllister, the widow of said deceased, with remainder over to the seven living children of the deceased, or devised a fee simple title to said widow.

The provisions of said will pertinent to this litigation are as follows:

'Second. I give and devise all the rest and residue of my property, real and personal, of every kind and character and wherever located or situated, whether vested or contingent, at the time of my death to my beloved wife, Fannie M. McAllister, to be used by her in any manner that she may deem fit and proper during her lifetime, and at the time of her death, it is my wish and desire that said property be divided between my beloved children, that is sons and daughters, as follows, to-wit:' (Naming sons and daughters, 1/7 each.)

'Third, It is my desire, and I hereby direct that in the event that if either of my sons or daughters named in this will should depart this life before I do, that the interest as set out herein opposite their name, shall pass and be divided in equal shares among their children.'

It has long been the rule in Oklahoma that the primary consideration in construing wills is to ascertain the intention of the testator in making the same, and that this intent must be ascertained by the language employed in the will. Noble v. Noble, Okl., 235 P.2d 670.

That rule was well stated in the case of Malone v. Herndon, 197 Okl. 26, 168 P.2d 272, 277, as follows:

'The cardinal rule of construction is to ascertain, if possible, the intent of the testator, and where his intention cannot have effect to its full extent, it must have effect as far as possible. 84 O.S.1941, § 151. And in case of uncertainty arising upon the face of the will, as to the application of any of its special provisions, the testator's intention is to be ascertained from the words of the will, taking into view the circumstances under which it was made. 84 O.S.1941, § 152. The intent must be ascertained from the entire instrument. Porter v. Porter, 97 Okl. 231, 222 P. 971; 69 C.J. 104; 28 R.C.L. 220. And it will be held valid whenever possible. 21 R.C.L. 295, 329. It is also important to observe that the intention of the testator need not be declared in express terms in the will, but it is sufficient if it can be clearly inferred from the particular provisions. 28 R.C.L. 218, par. 177.'

Oklahoma Statutes, 1951, Title 84, § 159 provides:

'Words to be given effect if possible.--The words of a will are to receive an interpretation which will give to every expression some effect rather than one which shall render any of the expressions inoperative.'

If the second paragraph of said will had been concluded and ended with the words, 'during her life time,' there could be no contention but that the testator intended to and did devise to his widow a life estate only in said real and personal property 'to be used by her in any manner she deems fit and proper during her life time.' Does the expression 'at the time of her death it is my wish and desire that said property be divided between my beloved children, that is sons and daughters,' as stated in the said paragraph of said will above set out, convert the life estate of the widow into a fee simple title? We think not. Even if the expression 'wish and desire' was given the meaning insisted upon by the plaintiff in error, still it would not vest in the widow a greater interest than a life estate in said property; or, had the words 'wish and desire' of testator been ignored, the designated beneficiaries would have nevertheless received said estate, but as heirs, instead of beneficiaries named in the will.

Considering the will as a whole, giving significance to every paragraph and expression thereof, and taking into consideration the circumstances under which it was made, we are convinced that the testator intended 'wish and...