Third Nat. Bank v. Scribner

• Decision Date: 01 July 1939
• Parties: THIRD NAT. BANK v. SCRIBNER.
• Court: Tennessee Supreme Court

130 S.W.2d 126

175 Tenn. 14

THIRD NAT. BANK v. SCRIBNER.

Supreme Court of Tennessee.

July 1, 1939

Appeal from Chancery Court, Davidson County; R. B. C. Howell Chancellor.

Suit to construe a will by the Third National Bank, executor, etc against Elizabeth Wilson Cates Scribner and others. From an adverse decree, the named defendant appeals.

Affirmed.

E. J Walsh and Cornelius, McKinney & Gilbert, all of Nashville, for complainant.

Samuel N. Harwood and Thomas H. Malone, both of Nashville, for defendant Elizabeth Wilson Cates Scribner.

Dora A. Bland, of Nashville, for defendant Elizabeth Wilson Cates Scribner as regular guardian of minor defendants James Wilson Cates and Mary Elizabeth Cates.

Trabue, Hume & Armistead, of Nashville, for defendants Nashville Trust Co., Richard T. Wilson, Sr., and John B. Wilson.

Dan E. McGugin, Jr., of Nashville, guardian ad litem for minor defendants James Wilson Cates and Mary Elizabeth Cates.

Tyne, Peebles, Henry & Tyne, of Nashville, for defendant National Life & Accident Ins. Co.

GREEN Chief Justice.

This is an appeal of Mrs. Elizabeth Wilson Cates Scribner, the only child of testator, from a decree of the chancellor construing the will of R. Morris Wilson and several codicils to that instrument.

We state so much of the contents of these papers as is required in consideration of the points in controversy.

By his will of October 16, 1936, the testator appointed the Nashville Trust Company and his daughter executors; gave certain pieces of jewelry to his grandson, James Wilson Cates, and a sum of money equivalent in value to his granddaughter, Elizabeth Wilson Cates; gave his automobile and household effects to his daughter; and further gave to his daughter the sum of $10,000 payable out of insurance at his death and the sum of $5,000 when she reached the age of forty years. The will then designated the Nashville Trust Company as testamentary trustee and left the remainder of his estate to said trustee. Out of the income the daughter was to be paid $800 a month during her life. Income above that charge was to be used under her direction for the support and education of her children and the residue of the income, except a small provision for a servant, to be reinvested and held with the corpus for the eventual benefit of the children. Power was given to the testator's daughter by her will to dispose of certain property owned by him on Fifth Avenue and the will conferred upon her the power of consent to sales, mortgages, etc., of the trust property and on her death this power of consent passed to her children upon their reaching maturity.

After this will was executed, the record discloses that Mrs. Cates contracted a second marriage over the opposition of her father and much to his resentment. By a codicil to his will dated January 1, 1937, each and everyone of the foregoing provisions contained in the will for the benefit of the daughter was separately and wholly revoked, together with the right to dispose of the Fifth Avenue property by will and the power of consent with reference to sales, mortgages, etc., of the trust property. The codicil gave all of the testator's property to the Nashville Trust Company in trust for the benefit of his grandchildren.

Two other codicils were made to the will on May 2, 1937, and June 7, 1937. These two codicils are identical. For the present, it is sufficient to say that the second and third codicils substituted the Third National Bank for the Nashville Trust Company as trustee. We will later refer to other language in the two codicils pressed upon our consideration by counsel.

There seems little room for controversy about testator's will as it stood after the addition of the first, second and third codicils. The trust created by the will was continued, as modified by Codicil No. 1, although the trustee was changed. The grandchildren were the sole beneficiaries of the trust. The benefits under the trust given to the daughter by the will were revoked, as were all other benefits and powers given to her.

The record further discloses that between June 7, 1937, and January, 1938, the testator and his daughter became reconciled and, in January, 1938, a fourth codicil was executed, in part, as follows:

"I, R. M. Wilson of Nashville, Tennessee, being of sound mind declared this to be a codicil to my last will made in October, 1936.

"For the love and affection I have for my daughter Elizabeth Wilson Scribner, I direct that the Executor or Executors and the Trustee or Trustees, later to be designated and appointed by me, or by my brother Richard T. Wilson, should my death occur before I have made such appointment, shall pay out to the net proceeds of my Estate the sum of Eight Hundred dollars ($800.00) per month, a total of nine Thousand six hundred dollars per annum ($9,600.00). The first of said payments to become due and payable from the date of my death.

"My daughter shall have the use and occupancy of my home on the Franklin Road with what furnishings therein belonging to me, for her life, free of rental, and I direct that the Trustee or Trustees pay, from the funds of my estate, the taxes and insurance there on. I direct that the Executor or Executors turn over to my daughter Elizabeth $1,000 in cash or securities."

It will be observed that testator by the fourth codicil restored the income of $800 a month to his daughter originally provided by the will. That he gave her his home on the Franklin Road with the furnishings, for life, and provided that the trustee should pay taxes and insurance on the same. The fourth codicil did not restore the power to dispose of the Fifth Avenue property by will, nor the power of consent with reference to mortgages and sales of the trust property, nor the two legacies of $10,000 and $5,000 each, but gave to the daughter $1,000.

By the fourth codicil the testator gave in trust for the benefit of his brother, Richard T. Wilson, and children of the latter, property said to be of the value of $100,000. The value of the entire estate is said to be $800,000.

The fourth codicil also contains these provisions:

"I have confidence in the integrity and ability of my brother Richard, and if I have not appointed an Executor and Trustee before my death, it is my desire, and I hope he will consent to act, as co-executor, and as Co-Trustee, with the Executor and Trustee, whom I have given him the power to designate and appoint. The reference to Co-Executor and Co-Trustee, refers to that part of my Estate left for the benefit of my daughter Elizabeth, and my two Grand Children--And I do not require that my brother give bond or bonds."

Previously in the fourth codicil, introductory to the bequest of the income for the benefit of his daughter, testator had directed that such income be paid by "the Executor or Executors and the Trustee or Trustees, later to be designated and appointed by me, or by my brother Richard T. Wilson, should my death occur before I have made such appointment." Other provisions of the fourth codicil are these:

"Should I die with out having appointed the said Executor and Trustee it is my wish that the Executor and Trustee designated and appointed by my brother seriously consider his opinions as he is more familiar with my property and my wishes than anyone.

"I further direct that whether my brother does or does not act as Co-Executor or Co-Trustee I desire and direct that his written consent and approval shall be secured before any sales of real or personal property, or mortgages made on the property, and leases made. After the death of my brother I desire the written consent of my daughter, and my Grand Children if of age-- ***

"I further wish to emphasize that the corpus and income, my home and furnishings which my daughter Elizabeth is to enjoy under this instrument is in every way protected by the Spend Thrift trust as set out in my will of October, 1936."

The foregoing, which is a fair statement of the testamentary papers before us for construction, insofar as they relate to testator's daughter, does not present a situation in which it is difficult to gather the testator's meaning. His intent seems clearer when we take into consideration surroundings indicated by the record.

The testator obviously was devoted to his daughter. Quite obviously he disliked her second husband and was indignant at her second marriage. While in this frame of mind, testator cut his daughter off from any participation in his estate. Later, he became reconciled to his daughter and made another bountiful provision for her under the fourth codicil. The record, however, does not disclose that testator had acquired any great affection for the second husband. The fourth codicil indicates that testator had not regained that confidence in his daughter's judgment that she enjoyed before her last marriage. We see nothing in any of these testamentary papers, nor in the surroundings of the parties, to indicate that the testator desired his daughter to take any other or greater portion of his estate or further powers than are specifically set out in the last codicil to his will.

Counsel for the daughter contend that what seems to be inadvertent language in Codicils 2 and 3 had the effect of reinstating the original trust in favor of the daughter revoked by Codicil 1. They further contend that the declaration in Codicil 4 that the instrument is "a codicil to my last will made in October, 1936," without mention of the intervening codicils, is a republication of the original will and an implied revocation of Codicils 1, 2 and 3. These contentions we discuss in order.

The second and third codicils to the will proceed as follows:

"I R. Morris Wilson of Nashville, Tennessee, being of sound...