Ralls v. Johnson

• Decision Date: 11 January 1917
• Docket Number: 7 Div. 801
• Citation: 200 Ala. 178,75 So. 926
• Parties: RALLS et al. v. JOHNSON et al.
• Court: Alabama Supreme Court

75 So. 926

200 Ala. 178

RALLS et al. v. JOHNSON et al.

7 Div. 801

Supreme Court of Alabama

January 11, 1917

On Application for Rehearing, May 24, 1917

Appeal from City Court of Gadsden; John H. Disque, Judge.

Bill by Lillie S. Johnson and others against A.W. Ralls, as administrator, and others, to construe a will. From the decree rendered the administrator and others appeal. Affirmed in part, and in part reversed and remanded.

The will directed to be set out is as follows:

(1) Payment of just debts.

(2) To my son Mentor B. Johnson the sum of $10,000 for services rendered, and for which he has received no pay; and I give and bequeath all life insurance policies on the life of said Mentor B. Johnson, payable to me, to the said Mentor B. Johnson in addition to an equal share in the balance of my estate.

(3) I give, devise and bequeath to my wife Lily S. Johnson Mentor B. Johnson, Q. Johnson, V. Johnson, Mrs. Lola Ralls wife of Dr. A.W. Ralls, Thos. L. Johnson, Jr., and Sterling Johnson, being all my children, all the residue and rest of my estate, real, personal and mixed, of which I shall die seised and possessed or to which I may be entitled at my decease equally between my said wife and said children, share and share alike.

(4) I hereby direct that my said daughters, Q. Johnson, J Johnson and my son, Mentor B. Johnson be allowed to retain rent free my home on Ninth street in Gadsden, Alabama, until said estate is divided.

(5) I hereby direct that my said wife, Lily S. Johnson and two minor children, Thos. L. Johnson, Jr., and Sterling Johnson, retain and occupy rent free my home in East Gadsden together with the lands adjacent thereto during the minority of said children and until said estate is divided.

(6) I hereby direct my executor hereinafter named to pay a sufficient sum to my said wife and children each year for their maintenance and support, and pay in addition thereto a sufficient sum to properly educate my two minor children Thos. L. Johnson, Jr., and Sterling Johnson.

(7) I authorize and empower my executor hereinafter named to keep intact all my property that I may own at my decease for a period of twenty years after my death, except the amount necessary for the maintenance, support and education above stated; but if he sees fit he may make distribution of any or all of said property at any time before the expiration of said twenty years, but shall not be required to do so.

(8) I do nominate my said son Mentor B. Johnson to be the executor of this my last will and testament without bond.

(9) I hereby authorize and empower my said executor to sell, dispose of and convey any and all property, real, personal and mixed, to which I may be entitled and own at my death on such terms and at such price as if he owned the property absolutely. It being my will and direction that my said executor shall have power and authority to dispose of any property, real, personal and mixed, as fully and as completely, as I might do if I were living for the purpose of reinvestment, distribution, pay debts, maintenance, support and education of my wife and children or for any other purpose that he may think proper, without interference from any one, and make any and all proper deed to same.

In testimony whereof I hereunto set my hand and seal this the 25th day of January, 1906.

Goodhue & Brindley and Dortch & Allen, all of Gadsden, for appellants.

Motley & Motley and Hood & Murphree, all of Gadsden, for appellees.

THOMAS J.

The will of Thomas L. Johnson, deceased, is by this appeal presented for construction. The reporter will set it out in the statement of facts.

The testator was twice married. By his first wife he had four children, a son, Mentor B. Johnson, and three daughters, Q. Johnson and V. Johnson and Mrs. A.W. Ralls. The latter was living with her husband, Dr. A.W. Ralls, who amply maintained her. The said Mentor B. Johnson and his two unmarried sisters lived in testator's home on Ninth street, in the city of Gadsden, when the will was made, and at the death of testator; while complainant and her two minor children, Thomas L., Jr., who was only five years of age, and Sterling, who was only eleven months of age, lived with testator at their home in East Gadsden at that time. The two separate homes had been maintained for the reason that there were two families, the two separate sets of children of the testator. The children of the first wife were of age, and to each of them testator had given such education as he saw fit. Testator sought to define the interests which his wife and her two children should take in his estate, and to make provisions for them as he saw proper. The widow must take under the will, or renounce its provision and take under the statute. Such was substantially the relative situation or status of the testator, and of each of his two families, at the time he made the will in question.

The application of common sense in the interpretation of wills has evolved certain cardinal rules of construction. The testator's intention, if legal, is the law of the instrument. Wolffe v. Loeb, 98 Ala. 426, 13 So. 744; Wynne v. Walthall, 37 Ala. 37; 1 Schouler on Wills (5th Ed.) § 466. This intent must be gathered from the whole will, when all the parts are construed in relation to each other, "taking due consideration of the testator's scheme manifested by the will itself, so as, if possible, to form one consistent whole." Myrick v. Williamson, 190 Ala. 485, 67 So. 273; Montgomery et al. v. Wilson et al., 189 Ala. 209, 66 So. 503; Smith v. Smith, 157 Ala. 79, 47 So. 220; Holt v. Hermann, 185 Ala. 257, 64 So. 431.

In the case of an apparent repugnancy, the general intent of the testator, as declared by the will, must be preferred to the special intent (Miller v. Flournoy's Heirs, 26 Ala. 724; Nightingale v. Shelden, 5 Mason, 336; 1 Schouler on Wills, § 466); and we cannot incorporate provisions not expressed in the will, unless the will itself clearly shows such to have been the testator's intention (Hollingsworth v. Hollingsworth, 65 Ala. 321). The residuary clause therein is in legal effect the last clause of the will, notwithstanding its position. 40 Cyc. 1413, and authorities. However, to effectuate the intention of the testator a general residuary clause will be made to yield to a specific inconsistent provision, especially if the latter be subsequent in recital. Rogers v. Rogers, 49 N.J.Eq. 98, 23 A. 125; Board v. Stead, 259 Ill. 194, 102 N.E. 173; Markle's Estate, 187 Pa.St. 639, 41 A. 304; Radfield on Wills, 446; 1 Schouler on Wills, § 474; 2 Jarm. on Wills (R. & T.'s Ed.) 44.

In this state the rule has been long declared that apparently conflicting clauses must, if possible, be so reconciled as to make each operative, and that in case of irreconcilable repugnancy the latter clause must prevail over the former, as being the last expression of the testator's will. Thrasher v. Ingram, 32 Ala. 645; Denson v. Mitchell, 26 Ala. 360; Gibson v. Land, 27 Ala. 117. But it is equally well settled that the rule that the latter clause must prevail over the former in case of irreconcilable repugnancy is never applied except on the failure of every such attempt to give the whole will such construction as will render every part effective. Walker's Gdn. v. Walker, 17 Ala. 396; Griffin v. Pringle, 56 Ala. 486; Rogers v. Rogers, supra.

It results, therefore, that where an estate or interest is given in one clause of a will in clear and decisive terms, the interest so given cannot be taken away or diminished "by raising a doubt upon the extent and meaning of a subsequent clause, nor by inference therefrom, nor by any subsequent words that are not as clear and decisive as the words of the clause giving the interest or estate." Duncan v. De Yampert, 182 Ala. 528, 62 So. 673; Bruce v. Bissell, 119 Ind. 525, 22 N.E. 4, 12 Am.St.Rep. 436; Pitts v. Campbell, 173 Ala. 604, 55 So. 500; 1 Underhill on Wills, § 358; 30 Am. & Eng.Ency.Law, 688; 1 Schouler on Wills, §§ 466, 468, 474. Lord Campbell's statement of the maxim is:

"If there be a clear gift, it is not to be cut down by anything subsequent which does not, with reasonable certainty, indicate the intention of the testator to cut it down, but the maxim cannot mean that you are to institute a comparison between the two classes as to lucidity." Randfield v. Randfield, 8 House of Lords Cas. 224, 235.

It is insisted by appellants that the first three paragraphs of the will disposed of the entire estate of Thomas L. Johnson and fixed the interest of each devisee or legatee. By the first paragraph the executor is directed to pay testator's just debts; and by the second paragraph there is carved out of the estate so remaining the sum of $10,000 for testator's son Mentor B. Johnson, and also all life insurance policies, payable to the testator, on the life of said son. The third paragraph devises and bequeaths to his wife, Lillie S. Johnson, and his children, Mentor B. Johnson, Q. Johnson, V. Johnson, Mrs. Lola Ralls, Thomas L. Johnson, Jr., and Sterling Johnson, equally, share and share alike, "all the residue and rest of my estate, real, personal and mixed, of which I shall die seised and possessed, and to which I may be entitled at my decease."

If, therefore, the provisions of item 3 are limited by the subsequent provisions of the will, this intention of the testator must be clearly and explicitly shown; that is to say, the subsequent provisions of the will must indicate with reasonable certainty the intention of the testator to cut down the estate disposed of in item 3 as "the rest and residue" of his estate.

Though paragraph 3 directed an equal distribution of the "residue" of the estate, yet it is equally clear from the subsequent provisions of the will that it was...