Treanor v. Treanor

• Decision Date: 19 April 1941
• Parties: TREANOR v. TREANOR et al.
• Court: Tennessee Supreme Court

152 S.W.2d 1038

TREANOR v. TREANOR et al.

Court of Appeals of Tennessee, Middle Section.

April 19, 1941.

Certiorari Denied by Supreme Court June 28, 1941.

Appeal from Chancery Court, Cheatham County; S. A. Marable, Chancellor.

Suit in equity by John B. Treanor, Jr., against Mrs. Florence H. Treanor and others for construction of the will of John B. Treanor, Sr., deceased. From a decree construing the will as contended for by defendants and dismissing the bill, complainant appeals.

Affirmed.

Rutherford & Rutherford and Charles H. Rutherford, Jr., all of Nashville, for appellant.

Goodpasture & Carpenter, of Nashville, for appellee Mrs. Florence H. Treanor et al.

CROWNOVER, Presiding Judge.

This suit involves the construction of a will.

The will of John B. Treanor, Sr., deceased, is a holographic will. It was written by him, in his own handwriting, without legal advice. The will is as follows:

                  "My Will
                      "Jno. B. Treanor Sr
                                     "February 4 — 1938
                

"I Jno. B. Treanor Sr. of Craggie Hope Cheatham Co. Tennessee, being of sound and disposing mind and memory do hereby declare this to be my last will and testament hereby revoking and making void all other wills by me at any time made

"First: I desire all my just debts paid as soon as convenient to my here in after named Executor

"Second: To my sons and daughter I hereby will devise and bequeath the following articles of my personal belongings: To Jno B. Treanor Jr. my fathers rod and reel To son Joe H. my 38 caliber pistol and my watch I now carry to son W. O. II the horn handle razor which Grandfather Bell used when in the Queen's Guards and the remainder of my fishing tackle: To Thos Stardey my remington pump gun To Lawrence L my gold faced watch: To Mercer my personal Elgin watch which he now has and my other hand razor: and to my daughter my mothers house hold silver.

"Third: To my wife Florence Haggins Treanor as long as she is Mrs. Treanor I will devise and bequeath the remainder of my property both real and personal or mixed of which I die possessed or to which I may acquire and be entitled to dispose; as she sees fit

"Fourth: And last I hereby nominate and appoint my son Laurence L. Treanor as the Executor of this my last will and Testament and having full confidence in him I request that he be allowed to serve with out bond. In case of his inability to serve I appoint my daughter Georgena Treanor to serve in his place and stead and under the same circumstances:

"This is my last will and testament and has been by me made without any undue influence or persuasion by any person or persons whatsoever.

"Witness my hand and seal to this my last will and testament at Nashville Tennessee this fourth of February 1938.

                         "John Bell Treanor Sr
                    "Jno. B. Treanor Sr."
                

The controversy which is the basis of this suit is between one of his sons, John B. Treanor, Jr., complainant, and his widow, Mrs. Florence H. Treanor, and his other sons and daughter, as defendants, and is over the meaning of the third item of the will. The complainant contends that it was his father's intention to devise to Mrs. Treanor a life estate in the realty subject to be defeated by her marriage, with remainder to his sons and daughter, or that the testator died intestate as to said remainder interest.

The defendants insist that item three devises to Mrs. Treanor an estate during widowhood, with power to dispose of the same "as she sees fit"; and that the addition of this last clause has the effect of creating in her an estate in fee simple.

This controversy depends solely upon a question of punctuation. There is a semicolon after the word "dispose", and the clause "as she sees fit" follows it. To construe the third item as the complainant asks, would require that the clause "as she sees fit" be dropped from the will. To construe it as the defendants ask, it would require that the semicolon be dropped and a comma be inserted after the word "entitled," making the third clause read:

"Third: To my wife Florence Haggins Treanor as long as she is Mrs. Treanor I will devise and bequeath the remainder of my property both real and personal or mixed of which I die possessed or to which I may acquire and be entitled, to dispose of as she sees fit."

The original bill alleged that the timber on said lands had been sold to Bond Bros., Inc., for $15,000, which was an inadequate price, and asked for an injunction to restrain Bond Bros., Inc., and the executor from cutting or disposing of the timber, which was granted. But at the conclusion of the hearing the suit was dismissed as to Bond Bros., Inc., and the only question before this court is one of construction of the will.

The cause was heard on depositions and the Chancellor construed the will as contended for by the defendants.

The complainant excepted to said decree and appealed to this Court and has assigned as error the Chancellor's construction of the third item of the will.

The facts are as follows:

John B. Treanor, Sr., was 65 years of age. He died on October 19, 1938, leaving surviving him his widow, Mrs. Florence H. Treanor, six grown sons and a married daughter.

He was the owner of a one-half undivided interest in a tract of land of 3,000 acres in Cheatham County. The other one-half interest in said land was owned by his brother W. O. Treanor, who was 90 years of age and a bachelor. About 1,200 acres of the land were timber land. It appears that this was the only property the testator owned.

In the early part of 1938 he underwent an operation for tumor or cancer of the bladder.

In February, 1938, he went to the office of his son, Lawrence L. Treanor, in Nashville, and wrote his will, in his own handwriting, and had it put in the safe by his son.

We are of the opinion that a correct interpretation of the will is reached by discarding the semicolon after the word "dispose" and inserting a comma after the word "entitled," as contended by the defendants and as held by the Chancellor.

The intention of the testator controls, in the construction or interpretation of his will (69 C.J. 52, § 1118), which is to be ascertained from the language of the will (69 C.J. 59, § 1119), every part of which must be considered in relation to every other part (Kuehle v. Zimmer, 249 Ill. 544, 94 N.E. 957; Wood v. Polk, 59 Tenn. 220, 12 Heisk. 220; Malone v. McGruder, 8 Tenn.Civ.App. 526, 8 Higgins 526, 541; Owen v. Owen, 8 Tenn.App. 246), taking into consideration the situation of the testator and the facts and circumstances surrounding him at the time the will was executed, the relations between him and his intended beneficiaries, and the amount and nature of his estate. 69 C.J 63, § 1120; Tapley v. Douglass, 113 Me. 392, 94 A. 486; Malone v. McGruder, 8 Tenn.Civ.App. 526, 8 Higgins 526, 541. And parol evidence is admissible, when necessary, both to place the Court in a knowledge of the condition and circumstances surrounding the testator when he executed his will, and to resolve uncertainties or ambiguities in the will as to the testator's intentions. 69 C.J. 135, § 1173; pp. 136-138, § 1174; Gannaway v. Tarpley, 41 Tenn. 572, 1 Cold. 572; Bunch v. Hardy, 71 Tenn. 543, 3 Lea 543.

Ordinarily, parol evidence is inadmissible to add to, vary, or contradict the language used in a will. 14 Ency. of Evidence, 498-500; Clark v. Clark, 70 Tenn. 723, 2 Lea 723; Horton v. Thompson, 3 Tenn.Ch. 575, 581; Weatherhead v. Sewell, 28 Tenn. 272, 9 Humph. 272, 302.

Ordinarily, declarations of a testator are inadmissible to aid in the construction of his will, except in explanation of latent ambiguities. 14 Ency. of Evidence, 500, 504, 506-7; Hennegar v. Deadrick, Tenn.Ch.App., 54 S.W. 138; Rodgers v. Rodgers, 6 Heisk. 489, 500; Gourley v. Thompson, 2 Sneed 387, 391.

But this rule does not preclude courts from hearing parol testimony that will enable them to put themselves as near as possible in the situation of the makers of the wills whose language is to be interpreted; such, for instance, as shows the state of facts under which the wills were made, the situation of the properties of the testators, the members of their families and other relevant or cognate facts. Cannon v. Ewin, 18 Tenn.App. 388, 392, 77 S.W.2d 990, and cases there cited.

Parol evidence is admissible to explain a latent ambiguity in a will.

This rule admitting parol evidence is applied in doubtful cases because of the extreme necessity of ascertaining the real intention of the testator. Cannon v. Ewin, supra, and cases cited.

The following parol evidence as to the testator's intention was admitted without objection.

Lawrence Treanor testified that when his father was preparing to write the will he told him that he wanted to leave each of the children some remembrance and leave the rest of his estate to his wife; that he said he felt that if he devised any portion of the land to his children his wife would have a hard time making a living and it was going to be hard enough for her to make a living at best.

Mrs. Treanor testified that he told her he had made a will in the summer of 1918. She further testified:

"I was in the bed-room and he told me that he wanted me to listen and I told him all right. He said, `Now I have made my will and I have left you everything to do the best you can with and as you see fit'; and he said, `But you will have a hard time making a living at the best.' He said, `Now, listen,' and I told him I was listening. He said, `I don't want you to sell the timber behind the house now.' He said, `You might need that later on, but sell this big tract for the best you all can do with it so you will have something to live on.'"

Joe H. Treanor, another son, testified that his father once told him: "I...