Rehearing
Denied Jan. 18, 1934.
Appeal
from Circuit Court, Pike County; W. L. Parks, Judge.
Bill by
Robert Murphree, as executor of the estate of Gussie M
Wiley, deceased, against Olive Wiley and others, for
construction of a will. From the decree, the named respondent
appeals.
Reversed
and remanded.
To
determine testator's intention in case of latent
ambiguity in will, court will look to words of will itself.
The
will involved is as follows:
"Know
all men by these presents: That, I, Gussie M. Wiley, a
resident of the City of Troy, Pike County, Alabama, being
mindful of the uncertainty of life, and being of sound and
disposing mind and memory, do hereby make, publish and
declare this, my last will and testament, in words as
follows, to-wit:
"First.
I hereby nominate and appoint Robert Murphree, of
Huntsville, Alabama, to be the executor of this will, and
I do hereby expressly relieve him of the necessity of
giving bond as such executor, which would otherwise be
required of him by law.
"It
is my will that my said executor shall pay all my just
debts and funeral expenses as soon as possible after my
death.
"Second.
I do hereby give, devise and bequeath unto my daughter,
Olive Wiley, the house and lot on the North side of
College Street in Troy, Alabama, now occupied by me as a
homestead and devised to me by my husband, O. C. Wiley. I
further give, devise and bequeath unto my daughter, Olive
Wiley, all the contents of my said house, including
furniture, furnishings and all other personal property
contained in my said home not otherwise specifically
mentioned, together with such automobile as I own at my
death.
"Third.
As a fund for the upkeep of the home heretofore devised
to my daughter, Olive, I do hereby give and bequeath unto
her the sum of Five Thousand Dollars, in trust for the
uses and purposes herein set forth, to-wit: she shall
receive and keep the said sum as an active trustee and
invest it safely, so as to produce an income. The income
she shall expend upon the repair and upkeep of the said
home. If, however, the income shall not be sufficient for
such purpose, she shall use such portion or portions of
the principal sum as she may find to be necessary.
Included in the upkeep of the home shall be included fire
insurance and taxes. If there is any portion of the said
sum of Five Thousand Dollars remaining at her death, then
it shall be equally divided between my daughter, Julia
Wiley Brantley, and the children of my deceased children,
Lois and James, the children of Lois and the children of
James receiving their mother's and father's share
respectively in equal parts.
"It
is my wish that, if possible, my home place above devised to
Olive Wiley, shall be kept in the family, as it was the wish
of my husband; and if my daughter, Olive, should nevertheless
find it necessary or advisable to sell it, then it is my
will, and I so direct that my daughter, Julia Wiley Brantley,
and the heirs of my son, James Wiley, and the heirs of my
daughter, Lois Wiley Folmar, shall have the refusal of said
property at the same price offered by any other person,
provided same shall be a bona fide offer by a responsible
person.
"Fourth.
I also give the sum of Three Hundred Dollars as a trust fund
for the upkeep of the Wiley cemetery lot, and I direct that
my executor hereinabove named shall, as soon as convenient
after my death, deposit said sum of Three Hundred Dollars in
the Troy Bank & Trust Company of Troy, Alabama, at interest,
and the said interest shall be used for the up-keep of said
cemetery lot. However, should said interest be insufficient
for the up-keep of said lot, it is my wish that such part of
the principal as may be necessary for that purpose be used,
and I hereby authorize and direct my executor to so use said
principal.
"Fifth.
In addition to the bequest hereinabove made to my daughter,
Olive Wiley, I also give and bequeath to my said daughter,
Olive Wiley, all of the stocks and bonds that I may have at
the time of my death, together with whatever sum I may have
to my credit in the Savings Account at the Troy Bank & Trust
Company.
"Sixth.
After the special bequests above made, I hereby give, devise
and bequeath the remainder of my estate as follows: to my
said daughter, Olive Wiley, a one-fourth part thereof, which
part shall be paid to her in case, if I have that much cash
on hand at the time of my death; to my daughter, Julia Wiley
Brantley, a one-fourth part thereof; to my grandchildren,
Oliver Wiley and Lois Wiley, a one-eighth part thereof, share
and share alike; to my grandchildren, Wilson Bibb Folmar,
Oliver Wiley Folmar, Ann Folmar and James Folmar, a
one-fourth part thereof, share and share alike. The remaining
one-eighth portion of said remainder of my estate, I give,
devise and bequeath the same to my grandson, Wilson Bibb
Folmar, which bequest is in addition to the one above named.
"In
testimony whereof, I have hereunto set my hand, in the
presence of the undersigned witnesses, who signed as
witnesses in my presence, at my request, this the 23rd. day
of July, 1931."
The
securities issued by the county of Madison, and here
involved, are in the following form:
"Number
36
"United
States of America
"$1,000.00
"State
of Alabama, County of Madison
"Jail
Warrants.
"Know
All Men By These Presents that the County of Madison, in the
State of Alabama, for value received, acknowledges itself
indebted to and promises to pay Martin & Warlick, their
successors or assigns, the sum of One Thousand Dollars on the
first day of September, 1933, at the County Depository of
said County of Madison, in Huntsville, Alabama, with interest
thereon at the rate of six per cent per annum, payable
semi-annually at the same place, on the first day of March
and September of each year on presentation and surrender of
the interest coupons hereto attached as they severally become
due.
"This
warrant is one of a series of time warrants of like date,
tenor and effect aggregating Twenty Five Thousand
($25,000.00) Dollars, authorized by the Board of County
Commissioners of Madison County, Alabama, in its official
capacity at a regular term and payable to Martin & Warlick.
"This
warrant and the interest coupons attached are each exempt
from all taxation by the State of Alabama and the County of
Madison.
"It
is hereby certified, recited and declared that this warrant
has been audited and allowed by said Board of County
Commissioners of the said County of Madison, and has been
duly registered, in a book kept for that purpose, that the
said sum is lawfully due and that a special tax upon all the
taxable property in said county, of twenty-five cents upon
the hundred dollars worth of taxable property, or so much
thereof as may be necessary to pay the debt evidenced by this
warrant and the other warrants of said series, with the
interest thereon, at maturity, has been levied for the year
1929; and the said Board of County Commissioners of Madison
County, Alabama, further agrees to make such levy for each
subsequent year until this debt has been fully paid.
"It
is further certified, recited and declared, that all acts,
conditions and things required to be done and performed
precedent to and necessary to the issuance and validity of
this bond exist, have happened and have been done and
performed in due form and time, that every requirement of the
Constitution and laws of the State of Alabama affecting the
issue of this warrant has been complied with, and that the
amount of this warrant together with all other indebtedness
of said County does not exceed the limitation prescribed by
the Constitution
and laws of the State of Alabama, and that the faith, credit,
revenues and property of the County of Madison, are hereby
irrevocably pledged to the punctual payment of the principal
and interest of this warrant according to its terms, and the
County of Madison will levy and collect in accordance with
the Constitution and in the manner provided by law, such
taxes as may be necessary therefor upon the real and personal
property and all other subjects of taxation in said county.
"In
Witness Whereof the County of Madison has caused this Warrant
to be signed by E. T. Terry, Chairman of the Board of County
Commissioners of said County, and to be countersigned by J.
Proctor Smith, Secretary of said Board of County
Commissioners of Madison County, and its corporate seal to be
hereto affixed as of the 1st day of September, 1929.
"E. T. Terry,
"Chairman Board of County Commissioners of Madison
County, Alabama.
"Countersigned: J. Rector Smith,
"Secretary Board of County Commissioners of Madison
County, Alabama.
"[Seal.] Madison County Board of Commissioners."
Indorsement:
"The
undersigned hereby certifies that it has Registered this
claim against the building, bridge and road fund raised by
special tax levied and collected and to be levied and
collected upon the taxable property of Madison County,
Alabama to pay the debt as set out in this warrant.
"This
the 4th day of Oct, 1929.
"No. 174. Tennessee Valley Bank
"County Depository of Madison County, Alabama.
"By J. L. Griffin, Asst. Manager.
"Coupon
No. 7. On the 1st day of March, 1933, $30.00 the County of
Madison in the State of Alabama, will pay to Martin & Warlick
Thirty and No/100 Dollars ($30.00) at the County Depository
of said County, in Huntsville, Alabama, being six months
interest then due on its Jail Warrant dated Sept. 1, 1929.
"36
"E. T. Terry,
"Chairman Board of County Commissioners of Madison
County, Alabama.
"J. Rector Smith,
"Secretary Board of County Commissioners of Madison
County, Alabama."
The
instrument also carries coupon No. 8, which is...
