Wilson v. Witt

• Decision Date: 24 March 1927
• Docket Number: 7 Div. 717
• Citation: 215 Ala. 685,112 So. 222
• Parties: WILSON v. WITT et al.
• Court: Alabama Supreme Court

112 So. 222

215 Ala. 685

WILSON v. WITT et al.

7 Div. 717

Supreme Court of Alabama

March 24, 1927

Rehearing Denied April 21, 1927

Appeal from Circuit Court, Calhoun County; R.B. Carr, Judge.

Bill in equity by C.E. Wilson against H.H. Witt, as executor of the will of J.H. Wilson, deceased, and others. From the decree complainant appeals. Affirmed.

Merrill Field & Allen and Willett & Willett, all of Anniston, for appellant.

Knox Acker, Sterne & Liles, of Anniston, for appellees.

BROWN J.

J.H. Wilson died on the 27th day of October, 1925, leaving a will, which he executed on the 11th day of April, 1925. At the time of his death the assets of his estate consisted of cash on deposit in Anniston National Bank, $56; cash in checking account at First National Bank of Anniston, $430.55; cash deposited in the First National Bank of Anniston, evidenced by certificates of deposit, $6,202.66, and certain described real estate, consisting of city and urban and farm property. The $6,202.66 in the First National Bank of Anniston was evidenced by two certificates of deposit, one for $5,202.60 dated April 16, 1925, and the other for $1,000 dated April 27, 1925. It is admitted by the appellee that these certificates were "in the general form shown by Exhibit C to the bill of complaint," to wit:

"First National Bank.

"$______ Anniston, Ala., ______, 192__.

"_____has deposited in this bank ______ dollars, payable to the order of ______ on return of this certificate properly indorsed ______ months after date with interest at ______ per cent. per annum for the time specified only.

"No. ______ [Signed].________.

"Thirty days' notice required before withdrawal."

The first paragraph of the will is in the following words:

"I have given to my wife, Laura Lee Wilson, a check on the First National Bank of Anniston, Alabama, for three thousand dollars, payable at my death. It is my will that she shall receive from my estate the said sum of three thousand dollars, to be paid by the collection of said check, or if for any reason the said check should not be collectible, then the said sum of three thousand dollars shall be paid her by my executor out of any property belonging to my estate. I also will to my said wife all other personal property of which I may die seised and possessed, except any notes and mortgages that may be payable to me."

In the second paragraph are the following directions:

"I direct that my executor hereinafter named shall sell of [off] my real estate for cash, at public or private sale, and that he collect all notes and mortgages that may be due me, and after the payment of any debts that I may owe at the time of my death, the proceeds of my real estate and all of said notes and mortgages shall be by my executor distributed equally among my children, share and share alike," etc.

After the death of the testator the will was duly admitted to probate, and the bill in this case was filed by C.E. Wilson, one of the legatees, to remove the administration into the circuit court on the equity side, for further administration, and for a construction of the will.

The contention of the complaint is that said certificates of deposit are within the contemplation and meaning of the will, "notes," and were by the exception to the first paragraph of the will, above quoted, excluded from the bequest to Laura Lee Wilson, and reserved subject to the payment of debts, as a part of the residuary estate for distribution among the children of the testator under paragraph 2 of the will. The circuit court was of opinion that this contention was not sustained, that these certificates were personal property, passing to the widow, and so decreed, and from that decree this appeal is prosecuted.

After due consideration we are of opinion that the decree of the circuit court properly and correctly construed the will and should be affirmed. The agreed statement of facts shows that the certificates of deposit in question were issued after the execution of the will; that the check mentioned in paragraph 1 of the will had not been paid, and that the chose in action and real estate enumerated in paragraph 4 of the answer of Laura Lee Wilson constituted all the assets of the testator's estate at the time of his death. There is but little, if anything, in these extrinsic facts that sheds light on the intention of the testator, in the use of the language:

"I also will to my said wife all other personal property of which I may die seised and possessed, except any notes and mortgages that may be payable to me."

To use the language of one of our early decisions "The exposition of wills has always been governed by the intention of the testator. He, not being supposed to be acquainted with legal form...