Thomas v. Reynolds

• Decision Date: 27 May 1937
• Docket Number: 3 Div. 211
• Parties: THOMAS v. REYNOLDS.
• Court: Alabama Supreme Court

174 So. 753

234 Ala. 212

THOMAS v. REYNOLDS.

3 Div. 211

Supreme Court of Alabama

May 27, 1937

Appeal from Circuit Court, Montgomery County; Walter B. Jones Judge.

Bill in equity by Elizabeth S. Reynolds against Elizabeth Reynolds, a minor, for construction of the will of Gibson Reynolds deceased. From a decree for a complainant, J. Render Thomas Jr., as guardian ad litem for the minor respondent, appeals.

Affirmed.

Where language of testamentary instrument is clear and unambiguous there is no field for construction, and court will ascertain intent from instrument alone.

J. Render Thomas, Jr., of Montgomery, for appellant.

Rushton, Crenshaw & Rushton, of Montgomery, for appellee.

THOMAS Justice.

The administration of the estate was duly moved into a court of equity and construction of a will is sought by the executrix under such instrument.

The bill is aided by the exhibit thereto. Grimsley v. First Ave. C. & L. Co., 217 Ala. 159, 115 So. 90.

The salient facts averred are thus stated by the pleader:

"*** that there were three children born to the said Gibson Reynolds, deceased, and your oratrix, viz., Gibson Reynolds, Jr., born May 1, 1924; Olive Stewart Reynolds, born November 28, 1927, and Elizabeth Reynolds, born January 3, 1936. That at the time of the execution of his said last will and testament by said Gibson Reynolds, on, to-wit, the 24th day of October, 1935, he was aware of the fact that a child would shortly be born to your oratrix. That said Gibson Reynolds was a physician who had actively practiced his profession in Montgomery County for over thirty years.

"3. Oratrix shows unto the Court that by the terms of said last will and testament of said Gibson Reynolds, deceased, all of his property is devised and bequeathed to your oratrix, and by Article IX of said will oratrix was appointed sole executrix of same, to serve without bond, and by said Item IX the said testator provided as follows:

" 'I have no provision for my children for the reason that I have confidence in my wife and I feel that she will deal justly with them and provide suitably for them.'

"Oratrix is advised and believes and upon such advice and belief avers and shows unto the Court that under the statutes of the State of Alabama, and more especially section 10585 of the Code of 1923, where a testator has a child born after the making of his will and no provision is made in the will in any way for such contingency, such birth operates as a revocation of the will so far as to allow such child to take the same share of the estate of the testator as if he had died intestate. Oratrix is further advised and believes and upon such advice and belief avers and shows unto the Court that the said provisions of the last will and testament of her said testator, and more especially the provisions of said Item IX thereof, show the intention of said testator to provide for the said Elizabeth Reynolds, who was shortly to be born."

The guardian for the after-born child answered saying:

"Respondent further avers and alleges that the said Gibson Reynolds executed said will, on to-wit, the 24th day of October, 1935, and that she was not born until, to-wit, January 3, 1936, and that at the time of her birth the testator, her father, the said Gibson Reynolds, was still living, and no provision was made in his said will in any way for the contingency of a child being born to him and his wife after the execution of his said last will and testament; and respondent avers and alleges that her birth operated as a revocation of her said father's will so far as to allow her to take the same share of the estate of the testator as if her father had died intestate.

"Respondent further avers and alleges that said will of her father, Gibson Reynolds, was executed on, to-wit, October 24, 1935; and that respondent was born, the child of said Gibson Reynolds and the complainant, Ethel S. Reynolds, on, towit, January 3, 1936, which was after the execution of her father's said will, and that in said will of her father no beneficial provision for said respondent was made by her father nor did he disinherit her altogether in clear and unmistakable terms, and that under the law and statutes of the State of Alabama, and more especially Section 10585 of the Code of Alabama of 1923, said will was revoked by respondent's birth so far as to allow her to take the same share of the Estate of her father, the testator, as if her father had died intestate."

The executrix as a witness gave the names and ages of her children, all of whom were born before the death of testator on March 13, 1937; that testator was a practicing physician on October 24, 1935, when the will was made , and at such time he knew that another child would shortly be born as the result of their marriage, and which duly eventuated to his knowledge.

The trial court rendered decree, saying: "*** upon consideration of the testimony, which was taken orally before the Court, is of the opinion that the testator, Dr. Gibson Reynolds, who is shown by the evidence to have been a practicing physician of over thirty years' experience, was well aware, at the time he executed his last will and testament, on October 24, 1935, that another child would be born to him and his wife within a few weeks; and the Court is further of the opinion that, under the provision of the last sentence of Item IX of said will, viz.: 'I have made no provision for my children for the reason that I have confidence in my wife and I feel that she will deal justly with them and provide suitably for them', the testator had in mind and intended to exclude from the provisions of the will the unborn child as well as the two children then living at the time of the making of said will."

The pertinent provisions of the statute, to which reference is made in respective pleadings, are:

"Whenever a testator has a child, born after the making of his will, either in his lifetime or after his death, and no provision is made in the will in any way for such contingency, such birth operates as a revocation of the will, so far as to allow such child to take the same share of the estate of the testator as if he had died intestate." Code, § 10585.

The rule of the common law only protected a subsequent marriage and birth of issue; the birth of issue alone had no effect upon and such issue was cut off by will as to property so devised. Doe v. Lancashire, 3 Durn. & E. 24, 5 Term R. 48. It was to meet this inconsistency that the statute was incorporated into our several codes. Woodliff v. Dunlap, 187 Ala. 255, 65 So. 936.

The subject-matter is dealt with by Mr. Freeman in his note to Wilson v. Fosket, 6 Metc. (Mass.) 400, 39 Am.Dec. 736, 740, 741. The authorities collected by that eminent editor of law reports are to the effect:

"In very many of the states and territories statutes have been passed similar to that of Massachusetts, providing that when any testator omits in his will to provide for any of his children, or for the issue of any deceased child, such child or issue shall take the same share to which it would have been entitled if the decedent had died intestate, unless it shall appear that such omission was intentional and not by mistake or accident: California, Civ.Code, sec. 1307; Dakota, Rev.Code (1877), 2d ed., p. 315, sec. 715; Michigan, 2 Comp.L. (1871), p. 1375; Maine, R.S. (1871), p. 564; Minnesota, Statutes (1878), p. 570; Nebraska, Gen.Stat. (1873), p. 304; Nevada, 1 Comp.L. (1873), p. 201; Utah, Comp.L. (1876), p. 272; Vermont, Gen.Stat. (1862), p. 380. In Missouri, New Hampshire, and Oregon similar provision is made for children and the issue of deceased children, living at the making of the will or born afterwards, and not 'named' or referred to or

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