Wiley v. Murphree

• Court: Alabama Supreme Court
• Writing for the Court: THOMAS, Justice.
• Citation: Wiley v. Murphree, 228 Ala. 64, 151 So. 869 (Ala. 1933)
• Decision Date: 21 December 1933
• Docket Number: 4 Div. 741.
• Parties: WILEY v. MURPHREE.

151 So. 869

228 Ala. 64

WILEY v. MURPHREE.

4 Div. 741.

Supreme Court of Alabama

December 21, 1933

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...