Morris v. Gilbert

• Decision Date: 08 January 1970
• Docket Number: 6 Div. 702
• Citation: 285 Ala. 179,230 So.2d 237
• Parties: Audrey Long MORRIS et al., v. Sarah GILBERT, as Administratrix, etc.
• Court: Alabama Supreme Court

Page 237

230 So.2d 237

285 Ala. 179

Audrey Long MORRIS et al., v. Sarah GILBERT, as Administratrix, etc.

6 Div. 702.

Supreme Court of Alabama.

Jan. 8, 1970.

John W. Cooper, Birmingham, for appellants.

Dominick, Fletcher & Yeilding, Birmingham, for appellee.

McCALL, Justice.

In this case the appellants seek a construction of a will. The material facts in the case are that Joseph H. Long and Ethel E. Long, husband and wife, executed an instrument in writing, on January 11, 1957, termed by them as their joint and several last will and testament. This purports to be signed by each of them and attested by two subscribing witnesses in the presence of the Longs. The instrument contains the following pertinent paragraphs which have to do with the testamentary disposition of property:

'(2) Except as provided in paragraph 3 of this will, we give, devise and bequeath to the survivor of us all property of every kind and character owned by us, whether jointly or severally, TO HAVE AND TO HOLD Unto said survivor in fee simple.

'(3) Should we both die at the same time or within 10 days of each other, such as in case of death growing out of a common disaster, then, we give all of our property whether owned jointly or severally, share and share alike to Audrey Morris and Cameron A. Long, being children of Joseph H. Long.

'(4) We nominate, constitute and appoint the survivor of us Executor or Executrix, as the case may be, and in case of our death under the circumstances mentioned in paragraph 3 of this will, then we appoint Audrey Morris Executrix, and in either event, we expressly direct that no bond shall be required, nor any inventory filed or any final settlement made of our estate, and in case of the circumstances mentioned in paragraph 3 of this will, then it should become necessary to carry out the terms of this will, then we given our Executrix the right to sell and convey any property which we may leave without order of court.'

Mr. Long died on May 8, 1964. More than four years later, on August 18, 1968, Ethel E. Long died in Birmingham. After the death of Mrs. Long, the above instrument was offered for probate by the appellee, Sarah Gilbert, an heir at law of Mrs. Long, as the latter's last will and testament. It was duly proven and admitted to probate by the probate court of Jefferson County, Alabama, on October 11, 1968 as Mrs. Long's will. On the same day the appellee made bond and letters of administration on the estate of Mrs. Long cum testamento annexo were issued and granted to her.

The appellants, who are the children of Joseph H. Long, and the stepchildren of Ethel E. Long, filed a petition in the probate court of Jefferson County, Alabama, invoking its equity powers, Vol. 14, Appx., § 706, Code of Alabama, 1940, Recompiled 1958, to have the will construed as Mrs. Long's will so as to establish the appellants as the beneficiaries thereunder. As grounds for this insistence, paragraph 4 of the petition alleges:

'4. That the said will filed for Probate by said Administratrix was a joint will of Joseph H. Long and Ethel E. Long, both of whom are now deceased; that it was the intent and purpose of said Joseph H. Long and Ethel E. Long that all of their property, whether owned jointly or severally was to be given, devised and bequeathed to your Petitioners to be shared and shared alike, although the said will does not make provision for the disposition of the property of Joseph H. Long and Ethel E. Long by the survivor of the two except under conditions amounting to a 'common disaster' wherein one survives the other by ten days or less.'

The appellants further aver that the failure to make disposition of the property upon the death of the survivor was due to a scrivener's error, that the true intent for the disposition of the property by the survivor of the two to the petitioners existed at the time of the drafting of the will and that that intent has been so expressed by the survivor Ethel E. Long on many occasions.

While the probate court sustained the appellee's demurrer to the petition of the appellants seeking a construction of the will, the case did not end there. The appellee joined issue on the original petition and the parties proceeded with a trial of the cause on the merits, each side offering oral testimony. This resulted in a final decree construing the will as being plain and unambiguous which was adverse to the appellants' contention. The appellants had their day in court and a full opportunity to present their cause under their original petition just as much so as if no demurrer had been filed. We hold therefore that appellants were not harmed by the adverse ruling of the court on their demurrer and take nothing under this assignment of error.

The will was drafted by a practicing attorney who testified on being called as a witness as to what the testators told him about the testamentary disposition they desired, and what they intended in this regard. There also was testimony of other witnesses as to what Mrs. Long intended and what Mrs. Long said was her reason for wishing to make this kind of will. There was conflicting testimony from a witness called by the opposing side. Since we are of the opinion that in this case such extrinsic evidence was inadmissible and is not to be considered, we see no reason for stating its details or even its substance.

Paragraph (2) of the will gives, devises and bequeaths to the survivor of Mr. and Mrs. Long all property of every nature and character owned by them whether jointly or severally, to have and to hold unto the said survivor in fee simple. As already stated, the will was drafted by a practicing attorney. This gives rise to the presumption that legal terms in the will are used in a legal sense. Such presumption is conclusive where an entire absence of other terms suggest a different meaning. Schowalter v. Schowalter, 217 Ala. 418, 116...