Wagar v. Marshburn

• Decision Date: 27 March 1941
• Docket Number: 1 Div. 128
• Citation: 1 So.2d 303,241 Ala. 73
• Parties: WAGAR v. MARSHBURN.
• Court: Alabama Supreme Court

1 So.2d 303

241 Ala. 73

WAGAR v. MARSHBURN.

1 Div. 128

Supreme Court of Alabama

March 27, 1941

[Copyrighted Material Omitted]

Harry T. Smith & Caffey, of Mobile, for appellant.

Webb & Shepard and McCorvey, McLeod, Turner & Rogers, all of Mobile, for appellee.

FOSTER Justice.

The chief question in this case is dependent upon the interpretation and effect of a written instrument dated September 11, 1919, executed by Fred L. Wagar and his two children, Portia W. Wagar (now Marshburn), and H.R. Wagar Jr., which instrument is as follows:

"2819 P St., N.W.,

"Washington D.C.

"September 11, 1919.

"I, F.L. Wagar, do not claim any interest in the estate of Nanta W. Wagar, and any claims I could have in law or equity or otherwise are hereby relinquished and set over and assigned to H.R. Wagar, Jr., and Portia W. Wagar, equally. I, F.L. Wagar, also release any interest in the property of 12th and Eye [I] Sts., N.W., of Washington, D.C. Numbers 900, 902 and 904 on 12th St., and Numbers 1201 and 1203 on Eye [I] St., inclusive, and I also release any claims or equity I have in the Colonial Apartments and the Annex in the city of Alexandria, Va.

"I, Portia W. Wagar and I, H.R. Wagar, Jr., jointly and separately guarantee to pay F.L. Wagar, during his lifetime, $2500. from the estate of Nanta W. Wagar and $2500. from the estate of H.R. Wagar, Sr., annually for looking after, advising and managing the aforesaid estates.

"In consideration of same, I, F.L. Wagar, hereby will and bequeath to Portia W. Wagar and H.R. Wagar, Jr., equally an undivided two-thirds (2/3) interest in all my personal property and all my real estate.

"Fred L. Wagar.

"H.L. Rust

"A. Elizabeth Oliphant

Witness as to F.L. Wagar

Portia W. Wagar

"H.L. Rust

"A. Elizabeth Oliphant

Witness as to Portia W. Wagar

H.R. Wagar, Jr.

"H.L. Rust

"A. Elizabeth Oliphant

Witness as to H.R. Wagar, Jr.

"District of Columbia, to-wit:

"On this 12th day of September, 1919, before the undersigned a notary public in and for the District aforesaid, personally appeared Fred L. Wagar, Portia W. Wagar and H.R. Wagar, Jr., whose names are signed to the with [in] instrument, all of whom are personally well known to me, and known to me to be the persons who executed the same, in said District and did each after being informed of the contents thereof, acknowledge the same to be their free and voluntary act and deed, as of the date on which the same bears date.

"Given under my hand and seal this 12th day of September, 1919.

"Geo. Calvert Bowie,

"Notary Public, D.C.

My commission expires Sept. 16, 1923."

"(Notarial Seal)

Fred L. Wagar died and left a widow, Elizabeth Wagar, who is not the mother of either of his children, and also left a last will and testament, which was probated in Mobile County, Alabama, September 10, 1935. In it he appoints his widow executrix and trustee of his estate, which he seemed to think was quite extensive. The trustee was directed to take, manage and control all his property, with quite full power of disposition; and to distribute one-half of the net income from his property equally among his widow and said two children, and retain one-half undistributed. The trust was to continue for a period extending ten years after the death of the widow. It also provided for her successor as trustee, and that she or her successor shall receive compensation in the sum of $5,000 a year, and necessary expenses incurred in performing the trust.

The court held that the instrument of September 11, 1919, was based on a valuable consideration and served to pass to Portia Wagar, and her brother H.R. Wagar, Jr., all the interest of Fred L. Wagar in the property of which their mother was seized at her death, and also that each of them was entitled to an undivided one-third interest in all the other property owned by him on September 11, 1919, free from any claims by reason of the administration of the estate of Fred L. Wagar, deceased. The court ordered a reference to determine what properties and their values were owned by him on said date, and other matters proper to adjust the respective interests of the parties. Elizabeth Wagar individually and as executrix prosecutes this appeal.

The principles which control the interpretation and effect of the instrument have been stated by this Court in several cases in harmony with authorities generally.

Parties sui juris may contract as they wish in respect to their property, within legal limits. The law in recent times does not dwell on the form in which they may express themselves. The purpose of the courts in that connection is to find out what is the intention of the parties, as so expressed, according to well known principles to guide in that respect, and then to enforce it as so interpreted. They may make contracts to pass an immediate right of enjoyment or to postpone it to some future date, such as the death of the grantor. When that right is thus postponed, it may be done by a contract so stipulating, or by a contract to make a will to that effect, or even by making such a will, all supported by sufficient consideration and in the manner required by law. It may be verbal or in writing dependent upon statutory requirements. It may presently pass the legal title by a deed with a reservation of enjoyment during the life of the grantor. It may be an executory contract agreeing to grant certain specified property effective at his death, measured by the general rules pertaining to executory contracts. It may be in substance an executory contract to devise and bequeath by a will certain specified property, or a certain amount of money in the nature of a general legacy, or all of his property and effects. The contract to do so may be expressed by executing the will, of course on a valuable consideration, or it may be in form an agreement to do so. A will is on its face, and, as such, revocable. An agreement to make a will expressed by doing so, and then revoking it is like the repudiation of an executory contract in other forms. It is an executory contract, and is not fully performed until he dies leaving a will duly executed as he had agreed. If it relates to certain specified property existing and described as of the date of the contract, it creates a present equitable interest in that property which can be enforced as other such rights after the death of the maker. If it relates to such property as the grantor may have at his death it leaves him more freedom to dispose of it as he sees fit in his life, and to sell or exchange it. And it will fasten itself on such as he might have at the time of his death. If it relates to a general legacy or annuity, it does not pass any certain item of property or specific lien but its effect is to cause his heirs, distributees, legatees and personal representatives, as the case may be, to stand charged with a duty to pay it out of the assets of the estate generally. It thereby creates a trust on his descendable property. Hendrix v. Pigue, 237 Ala. 49, 185 So. 390; Turley v. Hazelwood, 234 Ala. 186, 174 So. 616; 68 Corpus Juris 568, 569, 570, 571, 572, 573, 574; Bolman v. Overall, 80 Ala. 451, 2 So. 624, 60 Am.Rep. 107; Mayfield v. Cook, 201 Ala. 187, 77 So. 713; Manning v. Pippin, 86 Ala. 357, 5 So. 572, 11 Am.St.Rep. 46; Cox v. Hutto, 216 Ala. 232, 113 So. 40; Walker v. Yarbrough, 200 Ala. 458, 76 So. 390; Allen v. Bromberg, 147 Ala. 317, 41 So. 771; Schouler on Wills 792, section 691.

The court will not weigh with extreme nicety the balance between the value of the consideration and of the property transferred or to be affected. It was here fixed at $5,000 per annum during the life of the promisor, and a release from the worry and care of its attention. That is a sufficient consideration. 68 Corpus Juris 571, section 189; 1 Schouler on Wills 799, section 700; 1 Page on Wills 165, section 93.

Of course a contract is not enforceable to cut down a widow's dower. 68 Corpus Juris 588, note 68 and 69.

Our interpretation of the contract of September 11, 1919, is that it has two distinct aspects. It is in one of them a present conveyance or assignment to his two children of all the rights there described, which descended to him from his deceased wife and mother of the children. It is in another, and in terms, a present will and bequest to them of an undivided two-thirds' interest in all his other property. We do not think this feature of it is a deed. It does not use language which purports to pass a present interest, as did the former portion of it. The use of the words "will and bequeath" have no such import. In the latter feature of the instrument it is a contract on an expressed valuable consideration by which he wills and bequeaths. It is in substance a contract duly executed, whose meaning is that he will leave to those children an undivided two-thirds' interest in his real and personal property.

It was said in Noble v. Metcalf, 157 Ala. 295, 47 So. 1007, that when an instrument means in substance that its maker for a valuable consideration will make a "will" devising and bequeathing his property to another, it vests in such other no right or interest in any specific property during the life of such maker, and that the property of which he should be seized at the time of his death, the time when the will speaks, would be the property to be affected by the promise.

Of course, this intention may be made more manifest by expressly stating that it relates only to such property. Bolman v. Overall, supra; Cox v. Hutto, supra.

It is said in 1 Schouler on Wills, section 710, page 808, that a contract to leave one's property by will gives the promisor freedom to dispose of it during his life in good faith, unless it embraces specific property, "but...