Schowalter v. Schowalter

• Decision Date: 17 April 1930
• Docket Number: 1 Div. 576.
• Parties: SCHOWALTER v. SCHOWALTER ET AL.
• Court: Alabama Supreme Court

128 So. 458

221 Ala. 364

SCHOWALTER v. SCHOWALTER ET AL.

1 Div. 576.

Supreme Court of Alabama

April 17, 1930

Rehearing Denied June 5, 1930.

Appeal from Circuit Court, Baldwin County; F. W. Hare, Judge.

Bill in equity by Charlotte Gertrude Schowalter against Edward R Schowalter and others for construction of the will of V. McR. Schowalter, deceased, with a cross-bill by respondents. From a decree construing the will to the effect that complainant takes a life estate with remainder over to respondents after her death, complainant appeals.

Reversed and remanded.

Harry T. Smith & Caffey and Rit M. Smith, all of Mobile, for appellant.

Stevens McCorvey, McLeod, Goode & Turner, C. M. A. Rogers, and John N. Allen, all of Mobile, for appellees.

THOMAS J.

The first appeal is reported in 217 Ala. 418, 116 So. 116.

In that decision it was indicated that Dr. Schowalter's will may be properly construed by the courts as to the ambiguity or doubtful import of the terms employed, "remainder of my Estate"; and that parol evidence may be employed to enable the courts to assume the position of the testator, in order that the intent of testator as expressed in the will be declared. First National Bank v. Sheehan (Ala. Sup.) 126 So. 409.

It is recognized by the courts that while parol evidence is permissible in the matter of an ambiguity, to explain its meaning, it is not permissible to show the terms the testator intended to use; that is, inadmissible to show intent not deducible from terms employed or in contradiction of the will. Achelis v. Musgrove, 212 Ala. 47, 50, 101 So 670.

The rules of testamentary construction are well understood. Miller v. Wall, 216 Ala. 453, 113 So. 501; First National Bank v. Sheehan, supra; Ralls v. Johnson, 200 Ala. 178, 75 So. 926. Where a will is susceptible of construction, the decisions are uniform to the effect that the court, by way of parol evidence, will put itself, as far as possible, in the place of the testator, and in so doing, take into consideration the circumstances surrounding testator at the time he prepared and executed the will; look to the mode of testator's thought and living, his relations to or associations with the objects of his bounty and their conditions and needs, as age, condition, dependence or the lack thereof, the condition of his family, the amount, character, and productivity of his property, and the like. Fowlkes v. Clay, 205 Ala. 523, 88 So. 651; First National Bank v. Sheehan, supra; Steele v. Crute, 208 Ala. 2, 93 So. 694; Blake v. Hawkins, 98 U.S. 315, 25 L.Ed. 139; Smith v. Bell, 6 Pet. 68, 8 L.Ed. 322. Thus may the interpreter be placed in the position of the testator when he made the will, and from that standpoint discover what was intended by the terms he employed in his will. And of necessity each will presents its specific inquiry for intent and fact.

In Smith v. Bell, 6 Pet. 68, 75, 8 L.Ed. 325, Mr. Chief Justice Marshall said:

"The first and great rule in the exposition of wills, to which all other rules must bend is, that the intention of the testator, expressed in his will, shall prevail, provided it be consistent with the rules of law. 1 Doug, 322; 1 W. Bl. 672. This principle is generally asserted in the construction of every testamentary disposition. It is emphatically the will of the person who makes it, and is defined to be 'the legal declaration of a man's intentions, which he wills to be performed after his death.' 2 Bl. Com. 499. These intentions are to be collected from his words, and ought to be carried into effect, if they be consistent with law.

"In the construction of ambiguous expressions the situation of the parties may very properly be taken into view. The ties which connect the testator with his legatees, the affection subsisting between them, the motives which may reasonably be supposed to operate with him, and to influence him in the disposition of his property, are all entitled to consideration, in expounding doubtful words, and ascertaining the meaning in which the testator used them."

See City Bank v. McCaa, 213 Ala. 579, 105 So. 669.

It is further established in Fowlkes v. Clay, 205 Ala. 525, 88 So. 651, 653, as follows:

"The testator's intention (if legal), being the law of the instrument, must be gathered from the whole instrument, and all of its parts, after taking due consideration of the manifest scheme of the testator to ascertain its spirit rather than its letter; and, if possible, to make it 'form one consistent whole,' where the general and primary interest prevails over a special or secondary interest to the contrary."

What then is the general and primary interest that prevails over any secondary interest to the contrary (Fowlkes v. Clay; Smith v. Bell; Ralls v. Johnson, supra) in the use (by a layman) of the words:

"Know all men by these presents that I, V. McR. Schowalter, Md., of the above mentioned Town, State, and County, being of sound and disposing mind and memory, do therefore, make, ordain, publish and declare this Instrument in writing to be my last will and testament, that is to say, First after all my lawful debts are paid and discharged I give five dollars ($5.00) to my son Edward R. Schowalter, Second to my son Preston J. Schowalter, five dollars ($5.00) third, to my daughter Alice Elsa Schowalter five dollars ($5.00), Fourth, to my beloved wife, Charlotte Gertrude Schowalter I give device and bequeath the residure of my Estate both real and personal; at her death the remainder of my Estate to be Equally divided between my children, Edward R. Schowalter, Preston J. Schowalter, and Alice Elsa Schowalter. I hereby constitute and appoint my said wife Charlotte Gertrude Schowalter to be the sole Executrix of this my last will and testament hereby revoking all former wills by me made, and I direct that my Executrix be not required to give bond.

"In witness whereof I have hereunto signed my name and affixed my seal the 11th day of June, 1925.

"V. McR. Schowalter, Md. [Seal.]

"[Attested by]

"M. E. Green

"H. G. Bishop"

-of date of June 11, 1925; and those of October 30, 1925, as follows:

"Codicil No. 1 October 30 1925. The erasure of the words 'or remarriage' were erased by me October 30, 1925.

"V. McR. Schowalter [Seal.]

"[Attested by]

"Henry H. Henkel, Fairhope, Ala. [Seal.]

"M. E. Green, Fairhope, Ala. [Seal.]"

The testator was not a lawyer; wrote his own will; was not skilled in the use of legal phraseology, as evidently was the case in Smith v. Bell, 6 Pet. 68, 8 L.Ed. 322. What did he mean by the use of the words or phrases: (1) "to my beloved wife, Charlotte Gertrude Schowalter I give device (devise) and bequeath the residure (residue) of my Estate both real and personal"; and (2) "at her death interpolated as 'erased' by the codicil) the remainder of my Estate to be Equally divided between my children," etc.?

It is true that the instant will is not greatly different, in some of its phraseology as to the "remainder," in respect to that construed in Smith v. Bell, supra. In one a layman prepared his own will; in the other it was evidently prepared by an attorney at law-the respective preambles and general structure of the wills show such fact, and this is shown by the evidence as to the instant will. In the Schowalter will there was the gift of the nominal sums in money to the respective children; in the Goodwin will there was the gift of two pieces of personal property from or in use at the homestead of testator. In the instant will there was required of payment the debts and small or nominal sums to each of testator's children; thus creating what testator called the "residure (residue) of my (his) estate," which he "gave, deviced (devised) and bequeathed" to his wife; in the Goodwin will he gave and bequeathed unto his wife all his personal estate "to and for her own use and benefit and disposal absolutely." In the Schowalter will it is further provided that " at her death the remainder of my estate to be equally divided between my children," etc.; and in the Goodwin will the final provision was that "the remainder of said estate, after her decease, to be for the use of the said Jesse Goodwin," who was the son of testator. In the Schowalter will the wife was made executrix without...