Money v. Money

• Decision Date: 11 November 1937
• Docket Number: 4 Div. 962
• Citation: 176 So. 817,235 Ala. 15
• Parties: MONEY et al. v. MONEY et al.
• Court: Alabama Supreme Court

176 So. 817

235 Ala. 15

MONEY et al. v. MONEY et al.

4 Div. 962

Supreme Court of Alabama

November 11, 1937

Appeal from Circuit Court, Henry County; D.C. Halstead, Judge.

Suit in equity by Joe Money and others against J.A. Money and others. From a decree favorable to complainants, respondents appeal.

Reversed rendered, and remanded.

F.W Fish, of Abbeville, for appellants.

G.D Halstead, of Headland, for appellees.

KNIGHT Justice.

Tom Jeff Money departed this life in Henry county, Ala., on August 14, 1934, leaving a last will and testament, and which was admitted to probate and record, in common form, in the probate court of said county on the 21st day of January 1935. J.A. Money and T.E. Money, nephews of the testator, were appointed by the probate court administrators of the estate, cum testamento annexo.

The administration of the estate was, by proper order, removed from the probate court to the circuit court, in equity. Thereupon, Joe Money and others filed the bill or petition now before the court for interpretation and judicial construction of the will, claiming to be interested in said estate under said will.

The cause proceeded to final decree, the court holding that under the will of said decedent the living children of the two brothers of the decedent, Jim and John E. Money, and one Malcolm Edmondson took the estate in equal parts, share and share alike.

It appears from the bill and evidence offered on the hearing that at the time of the testator's death he had only one brother, John E. Money; that Jim Money, his other brother, was then dead, a circumstance known to the testator.

It also appears from the bill and exhibit thereto, and the testimony, that the will was written by Dr. Vickers, the physician attending the testator during his last illness. The original will is before us, having been sent to this court by the trial court for our inspection and consideration.

The will reads:

"State of Alabama, Henry Co. Abbeville, Ala. Aug. 11th, 1934.

"I hereby being in sound mind, make the following will, and ask that it be carried out. This will pertains to mortgage of John R. Buxton and wife, Mary.

"First. I will that all my debts be paid as soon as possible.

"Second. I will that the money from said mortgage goes evenly to my brothers children, and that Malcolm Edmondson share evenly with them, after all expenses including burial and doctor bills are paid.

"In few words, I will that Malcolm Edmondson shares just as the Money children, all having the same equal amount after my debts are paid."

The will shows some erasures, unnecessary to be noticed, and is signed by the testator by mark. It was executed three days before his death.

Confessedly, the will was written by a layman, inexperienced in writing such documents.

It is contended by appellants that only the children of John E. Money, the living brother, and the said Malcolm Edmondson were intended by the testator to take under the provisions of the will, while the appellees contend that they, children of Jim Money, the deceased brother, share equally in the distribution of the estate.

It will be noticed that the will reads: "I will that the money from said mortgage goes evenly to my brothers children." There is no apostrophe before or after the letter "s" in brothers.

It is first contended by appellant that there are but two letters following the "h" in brothers, and the word should be read brother and not brothers. An inspection of the original will does not bear out, or sustain, this contention. As we read the will, it is "brothers," not brother. We will, therefore, proceed to construe the will as reading brothers, without apostrophe before the "s," and bearing in mind that at that time the testator had but one living brother, John E. Money.

With reference to the writing and execution of the will, Dr. Vickers, the attending physician, and the one who drew the will, and a subscribing witness thereto, testified:

"Your name is Dr. W.C. Vickers? Ans. Yes sir.

"Did you know Tom Jeff Money? Ans. Yes sir.

"Did you wait on him at any time? Ans. Yes sir.

"Were you at his home on or about August 11th, 1934? Ans. Yes sir.

"On this date of August 11th, 1934, did you at his request write a will for him? Ans. I did.

"Will you state in your own words what happened, what transpired and what you did? Ans. He wanted all the debts paid out of some land up there somewhere and the doctor bill and burial expenses and what was left he wanted it to go to his brothers children.

"Do you remember whether he told any one there to get a paper to give to you when you were writing the will? Ans. I don't remember; he got some paper to write the will.

"Did he dictate it to you? Ans. Practically so.

"Did he say whose brothers children, which brothers? Ans. John Money.

"John Money's children? Ans. Yes sir. ***

"After the debts were paid and funeral expenses were paid out of this land what was left was to go to the children of John Money? Ans. Yes sir."

J.R. Buxton, a subcribing witness to the will, testified, in substance, that he was present when the will was written by Dr. Vickers, that he heard the instruction given by the testator with reference to writing the will; that the testator told Malcolm Edmondson to get up some papers "he had there," and give them to Dr. Vickers, saying he wanted the will written just like "that." That Mr. Money told Dr. Vickers how he wanted the property divided, and to whom he wanted it to go. He told him he wanted it to go to Mr. John Money's children and Malcolm Edmondson, and like it was in "that deed." This deed was introduced in evidence and the conveyance in this deed, after the termination of a life estate given to his sister, was to "Malcolm Edmondson and the children of his brother John E. Money, share and share alike."

We recognize the general rule to be that parol evidence of a testator's declarations, whether made before or after the execution of a will, are not admissible to show an intention not deducible from the terms of the will, or in contradiction or alteration of its plain and unambiguous language. Simmons v. Simmons, 73 Ala. 235; Dozier v. Dozier, 201 Ala. 174, 77 So. 700; Achelis v. Musgrove, 212 Ala. 47, 101 So. 670, 672.

But in cases where there is latent ambiguity, as pointed out in Achelis v. Musgrove, supra, statements or declarations of the testator "at the time of the execution, or about the time of the execution, of his will [are] admissible for the purpose of identifying the person or property." 2 Am. & Eng.Ency. of Law (2d Ed.), 294; Vandiver v. Vandiver, 115 Ala. 328, 22 So. 154; Alabama Mutual Fire Ins. Co. v. Minchener, 133 Ala. 632, 32 So. 225.

"The distinction is that, while such declarations are admissible to explain the meaning of ambiguous terms, it is never admissible to show terms the testator intended to use."

In the Musgrove Case, supra, this court held that the testimony of the person who drew the will, as to his conversation with the testatrix at the time of its making, showing...