West v. Randle

• Decision Date: 18 April 1887
• Citation: 3 S.E. 454,79 Ga. 28
• Parties: WEST and others v. RANDLE.
• Court: Georgia Supreme Court

3 S.E. 454

79 Ga. 28

WEST and others v. RANDLE.

Supreme Court of Georgia

April 18, 1887

Error from superior court, Greene county; LAWSON, Judge.

H. T. & H. G. Lewis, for plaintiff in error.

J. A Billups and John C. Hart, for defendant.

HALL J.

Richard Asbury executed his last will and testament in the year 1843. Two years thereafter he added to this will a codicil. He died in the year 1845, and his will was proved, and letters testamentary were issued to the executor named in the will and he entered at once upon the administration of the estate.

There are three items in the will which it will be necessary to consider, in order to determine the question made by this record. They are as follows:

"Item 2. I give to my beloved wife, Sarah, the negroes I got by her, Kitty and Frank; also lend her during her life Jesse and Bob; then to be equally divided between Emily's and Matilda's children. I lend her the Watts tract of land, three horses, three cows and calves one yoke of oxen and cart, three beds and furniture, a sufficiency of household and kitchen furniture for common use, also pork, corn, and fodder enough for one year."

"Item 12. I give to my daughter Emily the land I bought of Carey Watts, Eliza and her two children, Washington, Guilford, Jordan, and Rhody, and all the property put in her possession. Also, at my death, the land I bought of Boone, Alfred, and Montfort, and the Geer tract. And, at the death of my wife, the land I have lent her. If H. A. Randle is willing to pay $2.25 per acre, he may have the land from the Pearce tract on the side of Bethune's spring branch, next to his house."

"Item 14. I give to Emily and Matilda all the property I have lent their mother, after her death."

The question arises upon the twelfth and fourteenth items of the will, in respect to the Watts tract of land, which by item second had been loaned to Mrs. Asbury. It is insisted by the complainants that these items 12 and 14 are absolutely inconsistent with each other. This is denied by the respondent; and the controversy turns upon the force and effect to be given to the words "all the property," as used in this last-mentioned item of the will. The complainants insist that they are to be taken in their broadest sense; and the respondent, that they were used by the testator in a restricted sense, so as to exclude from their operation the lands and negroes disposed of by the second item of the will. We agree with the respondent's interpretation of these words in the will, and think that the words "all the property" were used in the restricted sense above mentioned, and that this is apparent from the frequent employment of these terms in a similar connection in nearly all the other bequests in this long will, and that it is necessary to attach to them this signification to avoid repugnancy, and to prevent these and other provisions of the will from being inconsistent and destructive of each other.

The cardinal rule for construing wills and contracts is to ascertain the intention of the testator in the one case, and of the parties in the other, so that the whole will or contract, and every part thereof, may, so far as they are consistent with the rules of law, be carried into effect; and so solicitous is the law to accomplish this object that it declares that sentences and clauses may be transposed, connecting conjunctions may be changed, and even, in cases where the clause as it stands is unintelligible or inoperative, and the proof of intention is clear and unquestionable, it allows omitted words to be supplied; but if the clause as it stands may have effect, it shall be so construed, however well satisfied the court may be of a different testamentary intention. Code, § 2456. This intention may be ascertained by resorting to the context to ascertain the sense in which a particular phrase or expression or term has been used by the testator. This is a familiar and undisputed rule of law. If it be possible to ascertain from the will itself what the intention of the testator was, resort should not be had to extraneous circumstances, although in cases of ambiguity, either latent or patent, and in cases of extreme doubt, the circumstances attending the testator at the time of the execution of this will may be resorted to, in order to ascertain what he meant by certain expressions used in the various clauses of his will. But this, as before stated, is to be avoided, if it be possible to ascertain that intention from the instrument itself. The law on the subject of inconsistent clauses in wills or contracts or deeds is well laid down in our Code: "If two clauses in a deed be utterly inconsistent, the former must prevail," but in a will it is otherwise,--there the latter must prevail. Code, § 2576. "But the intention of the parties should, if possible, be ascertained and carried into effect, so as to render the whole instrument operative." Code, § 2697. This can scarcely be considered an open question in this court. It was very carefully examined and determined, upon full discussion and deliberation, in the case of Maxwell v. Hoppie, 70 Ga. 160. There the question arose upon a post-nuptial settlement, and we laid down this doctrine: "The cardinal rule in the construction of contracts is to ascertain the intention of the parties; and if that intention is clear and contravenes no rule of law, and there are sufficient words to arrive at it, then it is to be enforced irrespective of all technical or arbitrary rules of construction." Code, § 2755. Now, what are the rules to which we may resort for the purpose of ascertaining and interpreting...