Wolffe v. Loeb

• Decision Date: 27 July 1893
• Citation: 98 Ala. 426,13 So. 744
• Parties: WOLFFE ET AL. v. LOEB ET AL.
• Court: Alabama Supreme Court

13 So. 744

98 Ala. 426

WOLFFE ET AL. v. LOEB ET AL.

Supreme Court of Alabama

July 27, 1893

Appeal from city court of Montgomery; Thomas M. Arrington, Judge.

Action by Carrie J. Loeb and others against Sophie Wolffe and others to have the claims of defendants to certain real estate removed as a cloud on plaintiffs' title. From a decree for plaintiffs, defendants appeal. Reversed and remanded.

In 1888 Samuel Wolffe, who, in common with B. Wolffe, was seised of the lands described in the bill, died, leaving his wife, Lena Wolffe, and four children. Shortly after his death a posthumous child was born to Lena Wolffe. What purported to be the last will and testament of Samuel Wolffe was admitted to probate on May 1, 1888; but no letters testamentary or of administration have been issued, and no administration has been had on his estate. This will is copied in the opinion. On January 15, 1890, B. Wolffe filed his petition in the probate court for the sale of the lands for division. This petition alleged the cotenancy of the petitioner and the testator, the death of the testator, the names and ages of his children and his widow, the birth of the posthumous child, after the date of the will, and the execution and probate of the will. The petitioner also alleged in said petition that by the terms of the will, and on account of the birth of the posthumous child, the interest of the testator belonged to the widow of the said Samuel Wolffe and the posthumous child; and that the interest of said widow, Lena Wolffe, in said lands, was five-twelfths, and that of the posthumous child one-twelfth, thereof. This petition resulted in a decree for the sale of the property, a sale under said decree, which was confirmed, and a commissioner's deed executed to the purchasers. The complainants claimed title to the lands involved in this suit by conveyance from the purchasers at this sale. Defendants set up in support of their claim of interest in the property their rights under the will. On the final submission of the cause, the chancellor decreed that the property described in the bill belonged to the complainants, and that they had a good title thereto, and thereupon decreed that the defendants be forever enjoined and restrained from interfering with the possession or title of the complainants, their heirs or assigns.

Lester C. Smith, for appellants.

Tompkins & Troy, for appellees.

HARALSON J.

In this appeal we are called to construe the following will "State of Alabama, Montgomery county: Know yea by these presents, that I have declared made this my last will; that in the event of my death, my wife, Lena Wolffe, shall be the sole controller of all my real estate, my personal property any stock or bonds which are assigned to me, or will be by reason of paying up this unpaid installment. All and everything now under the name and firm of B. Wolffe &amp Brother, also everything in real and personal property under the style of Wolffe, Abraham & Co., also all the real estate yet under the style of Berg & Wolffe, such and everything now under the name and style of N. Wolffe & Bro., real estate personal property, chattel mortgages, and everything which I now possess without distinction, I make my wife sole controller just the same as if I was alive; and, in order that this will shall not have to come about of any dispute or misconstruction, I declare this will incontestible. This, my last will, shall be probated after my death, and the property turned over to my wife. Out of this all just debts shall be paid out of the undivided part of all property now in the different above-mentioned firms. Signed this, the 11th day of June, eighteen hundred and eighty-seven. Sam. Wolffe. Witness: E. C. Seligman. Alex Sternfeldt." The contention of the appellants, for the construction of this will, is that it created Mrs. Lena Wolffe, the wife of the testator, the trustee or executrix, with ample powers, as therein contained, to administer the estate and distribute the same under the statute of descent and distribution; and the other, that of appellees, is that under it an absolute estate in fee is devised to said Lena Wolffe. As was aptly said by her counsel in argument: "There is no halfway ground upon which she can stand. There is not a word in the will, if any estate in the realty is vested in her, which would limit it to an estate for years, to an estate for life, to an estate pur autre vie, or to any lesser estate. If any estate is vested in her, it must be an estate in fee simple, for it does not clearly appear from the will that a less estate was intended. Code, § 1824." It is a legal truism that the cardinal rule-the one above all other rules-for the construction of wills is to ascertain the intention of the testator and give it effect. Wills are often drawn by persons very unskilled in the use of language, and are loose and inaccurate in expression; and this will is of that class. But, however inartificially or inaccurately expressed a will may be, when the judicial mind is brought to its construction, the effort is to ascertain from the language employed, the surroundings of the testator, and the objects of his bounty, what his intentions were in the disposition he has made of his property, and, when ascertained, to give effect to that intention, if it is not inconsistent with the law. Whorton v. Moragne, 62 Ala. 209; Alford v. Alford, 56 Ala. 353. Samuel Wolffe, we may reasonably infer from the evidence, was in the prime of life when he executed his will and when he died. His wife, Lena, was not yet old. At his death they had four children, all minors, the eldest 17 years old, and one, Samuel, was born after his decease. According to the ordinary and natural instincts of the human mind and heart, without something to indicate a good reason for a contrary course, a testator thus circumstanced, if he make a will at all, will make some just and equal provision for his children, and take care that the means of their maintenance and education be not left dependent upon the will or disposition of their mother, of the age this one was. It would probably have occurred to the testator that, at her age, his wife might contract after his death another marriage, and, if so, and all he had were vested by his will absolutely in her, his children, born in his lifetime, might in the vicissitudes of fortune, or by some influence to which she might be subjected, be deprived of inheritance in his estate. He could not have been ignorant of the fact, also, at the time he made his will, that his wife was of the age to bear other children, and he probably knew before he died that she was then bearing him an unborn child. As to such as might be born after the execution of his will, he knew also that, in the absence of a provision in the will for such contingency, the birth of such, whether in his life or afterwards, would work a revocation of his will, so far as to allow such child or children to take the same share of his estate as if he had died intestate. Code, § 1955. Without some good grounds to induce it, one would be slow to believe he intended to make discriminations in the bestowment of his generosities in favor of unborn children over those already born, who were of his household, and whose lives had already been interwoven by the ties of parental and filial love with his own. In this construction it is pertinent to refer to two of Jarman's rules of construction, having their foundation in natural justice and goodness: (5) That the heir is not to be disinherited without an express devise, or necessary implication, such implication importing, not natural necessity, but so strong a probability that an intention to the contrary cannot be supposed; and (6) that merely negative words are not sufficient to exclude the title of the heir or next of kin. There must be an actual gift to some other object. 2 Jarm. Wills, (2d Amer. Ed.) § 525; 3 Jarm. Wills, (5th Ed.) p. 704. In Denson v. Autrey, 21 Ala. 209, this court, speaking upon this subject, said: "Indeed, to defeat the heir at law or the distributee under the statute, the property must be disposed of by will, and mere words of exclusion, without a disposition of the property, cannot have that effect, for, the property not being devised or bequeathed, the statute then designates who shall take." In Banks v. Sherrod, 52 Ala. 270, the following language, in support of the same principle,...