Rodgers v. Rodgers

• Decision Date: 30 September 1871
• Citation: 53 Tenn. 489
• Parties: Chas. F. Rodgers et al. v. W. F. Rodgers et als.
• Court: Tennessee Supreme Court

53 Tenn. 489

Chas. F. Rodgers et al.

v.W. F. Rodgers et als.

Supreme Court of Tennessee.

September Term, 1871.

FROM KNOX.

Appeal from the decree of the Chancery Court, January Term, 1870. O. P. TEMPLE, Chancellor.

T. R. Cornick for complainants, insisted:

1. The codicil did not revoke the provisions of the original will in favor of the children of A. R. Rodgers: Brown v. Cannon, 3 Head, 355; 1 Jarman, 160; Redf. on Wills, p. 362, s. 34 and note.

2. The children of the living brothers, as well as those of the dead brother, took a vested interest equal to that of the brothers who survived the testator, the whole constituting a class among whom the estate is to be equally divided: citing Longman v. Brown, 7 Ves., 124; 2 Jarman on Wills, p. 3, s. 4; Bradley v. Jenkins, 2 Head, 191;Satterfield v. Mayes, 11 Hum., 58;Womack v. Smith, 11 Hum., 478;Bridgewater v. Gordon, 2 Sneed, 5;Harris v. Alderson, 4 Sneed, 250.

3. The dying declarations did not take effect as a nuncupative will, not having been reduced to writing in the lifetime of the testator, and there being a written will: citing Code, s. 2167; Green v. McCracken, Peck, 301-7; Allen v. Hoff, 1 Yerg., 404, 411;Woodard v. Woodard, 5 Sneed, 52-3. Besides, there was no animus testandi nor rogatio testium: citing Smith v. Thurman, 2 Heis., 115.

4. It requires something more than mere declarations to revoke a holographic will: citing Marr v. Marr, 2 Head, 309.

In the construction of a will, the court may look to the facts existing when the will was written, and not to those occurring subsequently: citing 1 Jarmon, 358, 363, 372.

W. P. Washburn and A. S. Prosser for defendants, insisted:

1. The cause was set for hearing on the bill and answer, and hence, every allegation of the answer, whether responsive or in avoidance, is to be taken as true: citing 1 Barb. Ch. Pr., 318; Brunkerhoff v. Brown, 7 Johns' Ch., 222.

2. The presumption that the bequests in a codicil are cumulative is very slight, and may be rebutted by slight circumstances: citing 5 Vesey, 381-384; 1 Jarman on Wills, 160; 3 Head, 355.

3. And in such cases parol proof may be introduced to show the intent with which the codicil was added; and if it shall appear that the provisions in the codicil were intended as a substitute for those made in the will, the latter are revoked, although there are no “revocatory words:” 1 Lomax. Ex'rs, 50.

4. In doubtful cases the situation and circumstances of the parties should be taken into consideration in determining the intent of the testator: citing Henderson v. Vaulx, 10 Yerg., 30; 2 Williams on Ex'rs 1111, 1112; Wigram on Wills, prop. 5, 13.

5. The proper construction of the original will is that the children of any deceased brother should as a class take as their father would have done if living.

NICHOLSON, C. J., delivered the opinion of the Court.

This bill was filed to have a construction of the will of Samuel R. Rodgers, who died in Knox county in 1866. Many years before his death he had written his will and signed it, and at a latter period, probably, he had written and signed a codicil to his will, but no date is given in either the will or codicil, and it is only from extraneous facts that any approximation to the date of either can be made. In the construction, however, the date is not a very material fact.

The will and codicil being both in the handwriting of the testator, without witnesses, and found among his valuable papers, were admitted to record under the provisions of the law as to the probate and recording of such wills. He made provision for his mother and two sisters, all of whom died before he did. He devised real estate which he had disposed of before his death. He had three living brothers and one who was dead, having four children at the time of testator's death.

The main question in the case arose between the three brothers, who were living at testator's death, and the children of his deceased brother.

After making provision for his mother and sisters, testator devised his two houses and lots to his two sisters during their natural lives, and to the survivor of them, and “at their death said real property to be sold, and the proceeds to be divided among my brothers, if living, and if dead, to their children, in which I embrace the children of my deceased brother, Alexander Rodgers. I mean that the remainder shall go equally to all my brothers and their children, as of those now living as those dead.”

He gives a legacy of five hundred dollars to his niece, Virginia Rodgers, “to be paid out of any money on hand; the balance of money on hand is to be kept at interest for my mother and sisters, and at their death to be divided as before stated among my brothers and their children.” He then concludes: “And all my other property I give and bequeath to my sisters, with the qualifications above made.” At the bottom of the will, after his signature, the testator added the following:

“I give and bequeath to each of the children of Dr. A. R. Rodgers one hundred dollars, to be paid out of my estate as soon as convenient,” which was signed and sealed, but without date.

Complainants are the children of Dr. A. R. Rodgers, and they claim that under the will they are entitled to one-fourth of the estate of the testator, and in addition thereto, they claim the $100 each. The three brothers, or their children, claim that the codicil to the will revokes that portion thereof which gives to A. R. Rodgers' children an equal share of the estate, and that they are entitled to the $100 each.

This statement of their respective claims presents the first question for determination. Two of the brothers of Sam. R. Rodgers, viz., Wm. Rodgers and Thomas Rodgers, were living when the bill was filed--the others being then dead. Wm. and Thos. Rodgers answer the bill, and admit most of the allegations as to the making of the will and codicil, the death of testator's mother and sisters, and the provisions of the will and codicil, and ask their construction by the court. They say that the $100 has been paid to each of the children of A. R. Rodgers, and that the payments were made under the belief that this was all to which they were entitled. They stated that being of opinion that the estate, after the specific legacies were satisfied, was to be equally divided among the three brothers. They entered into an agreement to that effect, and settled among themselves without formally executing the will according to its provisions.

They give their reasons for believing that the testator changed his purpose as to giving the children of A. R. Rodgers an equal fourth of his estate. They say that he was an ardent and enthusiastic Union man during the war, and that he was offended with A. R. Rodgers' children because they were rebels, and on that account he determined and so frequently said, that they should have none of his property. They also rely on the dying declarations of the testator, which were written down by one of the defendants four days after his death, and procured to be spread upon the minutes of the County Court, which statement is sworn to as being true. By this statement testator directed his three brothers, who were all present, how he wanted his property to be disposed of, and after specifying certain articles of property and telling who should have them, he added: “I wish you,” addressing Thomas Rodgers, John Rodgers and Wm. Rodgers, “to take the balance of my property and divide it between you without hard feelings.”

Defendants rely on these declarations of the testator as evidence that he had changed his purpose in regard to giving the children of his brother A. R. Rodgers an equal share of his estate, and as indicating that it was his intention, by his codicil, to revoke so much of his will as had given them such share.

The parties went to trial on bill and answer, and according to a well settled rule of the chancery pleading and practice, “the answer is to be considered true in all points, and when the defendant states that he believes and hopes to be able to prove such and such matters they are considered as proved: Brinkerhoff v. Brown, 7 John. C. R., 222. It is not meant by this rule that the legal deductions insisted on in the answer are to be considered as true, but only such matters of fact as are stated in the answer by way of defense, or evidence of the equity set forth in the bill.

In the present case it is to be considered as true that the testator expressed himself as dissatisfied with the children of his brother, A. R. Rodgers, because of their being considered rebels, and that he expressed his determination that they should share none of his bounty. It is also to be considered as true, that on his death-bed he made declarations which indicated that he wanted his property divided among his three brothers, and that he indicated no purpose that A. R. Rodgers' children should have any portion.

But notwithstanding this change in his purpose as to A. R. Rodgers' children, and notwithstanding his perfect right, for the reasons assigned, or any others, to revoke his former action on the supbject, yet he did not carry out his new purpose by destroying his old will or by making a new one, but after his death, his old will was found among his valuable papers, and has been set up, and recorded as the legal disposition of his property. It is clear, therefore, that the matters set up in the answers do not in law amount to a revocation of the original will. Nor is it contended that the dying declarations of the testator constituted a nuncupative will, which could operate as a revocation of the written will. It was not reduced to writing in the lifetime of the testator and read over to and approved by him: Code, s. 2167.

But it is said that in ascertaining the intention of the testator, the matters...