Myrick v. Williamson

• Decision Date: 19 November 1914
• Docket Number: 842
• Citation: 190 Ala. 485,67 So. 273
• Parties: MYRICK v. WILLIAMSON et al.
• Court: Alabama Supreme Court

67 So. 273

190 Ala. 485

MYRICK v. WILLIAMSON et al.

No. 842

Supreme Court of Alabama

November 19, 1914

Appeal from Law and Equity Court, Monroe County; W.G. McCorvey Judge.

Bill by Susan Williamson and others against L. Bernard Myrick. Decree for complainants on demurrer, and respondent appeals. Reversed and remanded.

J.D Ratcliffe, of Monroeville, for appellant.

F.W Hare, of Monroeville, for appellees.

GARDNER J.

Appellees (complainants in the court below), legatees under the will of T.P. Buffington, deceased, filed this bill for the purpose of cancellation of two certain deeds executed by Martha E. Buffington, widow of said T.P. Buffington, to appellant, L. Bernard Myrick, bearing date July 3, 1914, copies of which constitute Exhibits C and D to the bill; or, in the event it should be held said deeds conveyed a life estate to the grantee, that they be so limited by decree of the court. This is the sole purpose of this suit, and the grantee, L. Bernard Myrick, is sole respondent.

Demurrer to the bill being overruled, this appeal is brought, and the question of first importance relates to the construction of the will of said T.P. Buffington. This will the reporter will set out in the report of the case.

It is insisted by counsel for appellant that by the will Martha E. Buffington, the widow, was given the absolute fee to the entire estate, or, failing in that contention, that she was given by the will a life estate unaccompanied by any trust, with absolute power of disposition, and that therefore the effect was to give her the fee-simple title.

"It is a legal truism that the cardinal rule--the one above all other rules--for the construction of a will is to ascertain the intention of the testator and give it effect. *** When the judicial mind is brought to its construction, the effort is to ascertain from the language employed the surroundings of the testator and the objects of his bounty, what his intentions were in the disposition he has made of his property, *** and give effect to that intention, if it is not inconsistent with the law." Wolffe v. Loeb, 98 Ala. 426, 13 So. 744.

"This intent must be gathered *** from the language used in the will, and by this is meant that such intention shall be gathered from the four corners of the instrument; that is to say, from the whole will, the whole frame of the will, the whole scheme of the testator manifested by the will, taking into consideration, and giving due weight to, every word used in the will." Ball v. Phelan, 94 Miss. 293, 49 So. 956.

It must needs be conceded that the will contains no apt words of devise or bequest to the wife, Martha E. Buffington. If, therefore, the will is to be construed as effectuating a gift of the estate to the wife, it must be by necessary implication.

The rule with respect to estates by implication was clearly stated by this court in Wolffe v. Loeb, supra. It was there said:

"All estates by implication are founded on the intent of the testator, or ascertained from the words of the will, and, where implications are allowed, they must be necessary in order to effectuate this intention. A construction in favor of a devise or bequest by implication should be so strong, as that a contrary intention to that imported cannot be supposed to have existed in the mind of the testator."

The implication, as we have said in Sherrod v. Sherrod, 38 Ala. 543, must not rest on conjecture; it must be necessary, and so plain as to be irresistible to the mind. "If the words of the will, as written, construed in their ordinary sense, will make a valid will, then there can be no room for implication."

The case of Ball v. Phelan, 94 Miss. 293, 49 So. 956, reviews many authorities concerning this rule, and is of much interest in this connection.

Counsel for appellant, in his brief, leans heavily upon the language of the third paragraph of the will. Nothing is there devised to the wife. There is no gift or language subject to such construction when the entire will is looked to. The wife is "authorized to collect all claims," and "to take full control" of his property. In this respect the language bears much similarity to that of the will construed in Wolffe v. Loeb, supra, where the words, "I make my wife sole controller just the same as if I was alive," were construed as meaning to give full management and authority over the estate, but gave no beneficial interest therein. As said in that case:

" 'Control' means to check, restrain, govern, have under command, and authority over."

And the opinion proceeds with the following language applicable to the instant case:

"The testator, we must presume, understood the meaning of the words 'give, grant, devise or bestow,' as well as he did that of 'control,' and, if he had desired to devise or bequeath his wife anything, he would have employed some apt word to effect that intent."

In the fourth paragraph the testator directs that "in taking possession" of his estate his wife be exempt from bond and from making any settlement in any court. The bill shows that testator and his wife had but two children, complainant Susan Williamson and Mrs. Myrick, the mother of respondent L. Bernard Myrick, who died at his birth, whereupon respondent was taken to the home of the testator and raised by him and his wife. The respondent was about the age of ten years when the will was written, in May, 1902. It was but natural, therefore, that the welfare of respondent, then a boy, nurtured and cared for since his birth under the roof of testator, should be considered in the execution of his will, and, in response to this natural affection and concern for the future of the boy, that the testator, in paragraph fifth of the will, should say: "I hereby will and direct that my grandson, Bernard Myrick, shall have a right good education, and authorize my wife to pay for...