Spencer v. Title Guarantee Loan & Trust Co.

• Decision Date: 15 January 1931
• Docket Number: 6 Div. 768.
• Citation: 222 Ala. 485,132 So. 730
• Parties: SPENCER v. TITLE GUARANTEE LOAN & TRUST CO. ET AL.
• Court: Alabama Supreme Court

132 So. 730

222 Ala. 485

SPENCER v. TITLE GUARANTEE LOAN & TRUST CO. ET AL.

6 Div. 768.

Supreme Court of Alabama

January 15, 1931

Rehearing Denied March 19, 1931.

Appeal from Circuit Court, Jefferson County; William M. Walker Judge.

Bill by the Title Guarantee Loan & Trust Company, as trustee under the will of J. H. Woodward, deceased, against Margaret E Spencer and Joseph W. Simpson, for construction of said will. From the decree, respondent Spencer appeals.

Reversed and rendered.

See also, 132 So. 32.

Wm. M Spencer, Jr., Borden Burr, and D. K. McKamy, all of Birmingham, for appellant.

E. L. All, John S. Coleman, and Bradley, Baldwin, All & White, all of Birmingham, for appellees.

This case was submitted under Rule 46 and Mr. Chief Justice ANDERSON, delivered the opinion of the court.

The sole question for determination upon this appeal is whether or not a grandchild of Margaret Hopkins took any interest in the income upon the death of said Mrs. Hopkins and which involves the interpretation of the following language as used in paragraph (c) of item 7 of the codicil to the will of J H. Woodward:

"Upon the death of either of my children, the child or children of my deceased child shall take the share of the income which the parent would have taken if living."

In other words, was child or children used in the technical sense so as to exclude the grandchild of Mrs. Hopkins or in such a way as to include her descendants other than children?

It is a cardinal rule of interpretation that the entire will must be looked to in order to ascertain the intention of the testator, but it is equally as well settled that courts cannot disregard the plain and unambiguous language of a will in order to express a contrary intent for the testator notwithstanding said intent might appear to the court as more natural and just, for to do so would, in effect, be making a new will for the testator.

The primary, legal meaning of the words "child or children" is immediate offspring, descendants of the first degree, a son or daughter of the named ancestor. McGuire v. Westmoreland, 36 Ala. 594; Continental Life Ins. Co. v. Webb, 54 Ala. 688; Duncan v. DeYampert, 182 Ala. 528, 62 So. 673; Wilson v. Rand, 215 Ala. 159, 110 So. 3. This meaning has been given these words not only by the decisions of this court but by courts of the other states and of the Supreme Court of the United States.

There are instances in which the courts have felt justified in extending the words "child or children" when used in a will so as to include grandchildren, usually when no one meets the description of child or children in the technical sense or where there are peculiarities in the will which clearly show it was the intention of the testator to use the words in the enlarged meaning. Authorities, supra and Shuttle Co. v. Barker, 178 Ala. 366, 60 So. 157; Rosenau v. Childress, 111 Ala. 214, 20 So. 95; Baker v. Baker, 182 Ala. 194, 62 So. 284. The first exception does not, of course, exist in this case, as Mrs. Spencer...