Rudulph v. Hodo
| Citation | 228 Ala. 170,153 So. 238 |
| Decision Date | 01 March 1934 |
| Docket Number | 3 Div. 95. |
| Parties | RUDULPH et al. v. HODO et al. |
| Court | Supreme Court of Alabama |
Appeal from Circuit Court, Lowndes County; A. E. Gamble, Judge.
Bill by Caroline C. Rudulph and Florence Rudulph, as executrices of the will of B. B. Rudulph, deceased, against Lois Hodo and others, for construction of the will. From the decree rendered, complainants appeal.
Reversed and cause remanded in accordance with opinion.
Jos. R Bell, of Hayneville, and Daniel W. Troy, of Montgomery, for appellants.
Calvin Poole, of Greenville, for appellees.
The estate was duly removed from the probate court to the court of equity for a construction of the will and for administration of the estate. Upshaw v. Eubank et al. (Ala. Sup.) 151 So. 837; Hinson v. Naugher, 207 Ala. 592, 93 So. 560; Naugher v. Hinson, 211 Ala 278, 100 So. 221; Watson v. White, 216 Ala. 396, 113 So. 260.
The fourth paragraph of the will is: "I hereby nominate constitute and appoint my wife Caroline Caffey Rudulph, my daughter Florence Rudulph, and Z. T. Rudulph, as Executors of this my will, with full power to carry out my wishes, and having absolute confidence that they will act in accord and faithfully for the best interest of each of said beneficiaries, I direct that they nor either of them, be required to give bond for the faithful performance of this trust, which would otherwise be legally required of them; and I do further name and constitute my above named executors as trustees of the estate of each of my children during their minority, and I do hereby name my wife, Caroline Caffey Rudulph, as Guardian of any of my children who may be under the age of fourteen years." (Italics supplied.)
The decree was that by the terms of the will the executors "are not required to give bond as such Executors; * * * but they are required to give bond, as required by law in such cases, as Trustees of the Estates of the minor heirs" of said testator; that the widow named in the will "as Guardian of any of my (his) children who may be under the age of fourteen years," be required by the decree to give bond as such guardian for said minor heirs; and a reference was ordered to ascertain "the amount of bond as suitable and legal to be executed by the said Executors named in" the will, "as Trustees for the estates of the minor heirs," and "the amount of bond as suitable and legal to be executed by the said Caroline Caffey Rudulph, as Guardian for said minor heirs."
The facts agreed upon are that on April 14, 1917, testator made his will, which was duly probated on October 26, 1928; that his wife, Caroline Caffey Rudulph, and his daughter, Florence Rudulph, and testator's brother, Z. T. Rudulph, were named as executors, qualified, and assumed the duties and obligations of the trust so imposed; that the estate is of great properties, at this time worth about $500,000; that the property of the estate belongs equally, share and share alike, to eight heirs of decedent, viz., his wife, Caroline C. Rudulph, three daughters, Mrs. Lois Hodo (née Rudulph), Florence Rudulph, and Rella Rudulph, of full ages; and testator's minor children, Eugenia, Burwell B., Caroline, and William C. Rudulph; that the estate has been kept intact and undivided for five years succeeding the death of testator, as directed by the third paragraph of his will; that the brother, Z. T. Rudulph, one of the three executors named in the will, has died; that the assets are chiefly in large tracts of land, sums of money loaned through first mortgages on real estate, cash moneys on deposit with banks, cotton on storage, cattle and live stock.
The rules of testamentary construction are well understood, and need not be stated here, other than to say that the cardinal rule is to ascertain the intent of the testator from its words and provisions, if plain and unambiguous, and not in conflict with law. We cannot incorporate provisions not expressed in the will, unless the will clearly shows that such was testator's intention, or, in a proper case, the will and the relevant facts show such intention of the testator. Wiley et al. v. Murphree, as Ex'r (Ala Sup.) 151 So. 869; Montgomery v. Wilson, 189 Ala. 209, 66 So. 503; Ralls v. Johnson, 200 Ala. 178, 75 So. 926. The court must give the words employed the construction placed thereon by the testator in the context in which used, having due regard for the general scheme and purpose of the testator so evidenced. Gunter v. Townsend, 202 Ala. 160, 79 So. 644; Reid...
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Whitaker v. Kennamer
...a guardian ad litem for the minors, the petition for and grant of letters testamentary, and for testamentary guardianship ( Rudulph v. Hodo [Ala. Sup.] 153 So. 238); the and issue of same, and the bond of such personal representative. In this action of the court there was no error. In respo......
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Baker v. Wright
...Ninth Item to have his modest residuary estate distributed in small portions to distant relatives whom he did not know. In Rudulph v. Hodo, 228 Ala. 170, 153 So. 238, we observed that courts cannot incorporate into a will words not expressed therein unless the will clearly shows that such w......
- Kratz v. Baker, 6 Div. 538.