Summary
In Jordan v. Ringstaff, 213 Ala. 512, 105 So. 641, it is declared that the gift and devise of balance of property was intended as a residuary clause, in the absence thereof.
Summary of this case from Schowalter v. SchowalterOpinion
3 Div. 717.
October 15, 1925.
Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.
Rushton, Crenshaw Rushton, of Montgomery, for appellants.
It was not the intention of the Legislature to provide for the original taking of testimony orally before the court. Code 1923, § 6574. All property not disposed of by the will must be administered by the personal representative as if there had been no will. Wolffe v. Loeb, 98 Ala. 426, 13 So. 744; Johnson v. Holifield, 82 Ala. 123, 2 So. 753. The legacy to Mary Frances was demonstrative; that to Annie Pearl specific. Under the fourth item the former was entitled to $5,000 out of the cash, notes, and mortgages, and the latter was entitled to the residue left on hand in cash, notes, and mortgages. Myers' Estate, 33 Ala. 85; Gilmer's Legatees v. Gilmer's Ex'rs, 42 Ala. 9; Kelly v. Richardson, 100 Ala. 584, 13 So. 785; England v. Prince George's Parish, 53 Md. 466; Howe v. Bemis, 2 Gray, 205. The legal effect of the investment by the testator of a part of his estate, whether in cash or proceeds of notes and mortgages, in government bonds and corporate stock, was an ademption of the specific legacy to Annie Pearl of his cash on hand, notes, and mortgages, and to that extent a partial revocation of his will. Code 1923, §§ 10588-10560; Myers' Estate, supra; Johnson v. Holifield, supra; Bromberg v. McArdle, 172 Ala. 270, 55 So. 805, Ann. Cas. 1913d 855; Hood v. Haden, 82 Va. 588; Tomlinson v. Bury, 145 Mass. 346, 14 N.E. 137, 1 Am. St. Rep. 464; Stout v. Hart, 7 N.J. Law, 414; Humphrey v. Robinson, 52 Hun, 200, 5 N. Y. S. 164; McDonald v. Irvine, L. R. 8 Ch. Div. 101; Gardner v. McNeal, 117 Md. 27, 82 A. 988, 40 L.R.A. (N.S.) 553, Ann. Cas. 1914A, 119. A special intent must yield to the general intent, where there is an apparent repugnancy between the two; provisions not expressed shall not be supplied, except where an intention to that effect clearly appears. Hollingsworth v. Hollingsworth, 65 Ala. 321; Park v. Powledge, 198 Ala. 180, 73 So. 483; Ralls v. Johnson, 200 Ala. 180, 75 So. 926; Gurley v. Bushnell, 200 Ala. 409, 76 So. 324; Gunter v. Townsend, 202 Ala. 164, 79 So. 644.
Hill, Hill, Whiting, Thomas Rives, of Montgomery, for appellees.
Section 6574 of the Code of 1923 expressly grants the power of oral examination of witnesses at any time to the trial judge. The will shows an intent to dispose of everything possessed by the testator. Castleberry v. Stringer, 176 Ala. 250, 57 So. 849; Steele v. Crute, 208 Ala. 2, 93 So. 694. Partial intestacy will be avoided if possible. Achelis v. Musgrove, 212 Ala. 47, 101 So. 670; Pitts v. Howard, 208 Ala. 380, 94 So. 495. The bonds and stock purchased by the testator fall within the category of cash, notes, or mortgages. Hollingsworth v. Hollingsworth, 65 Ala. 328; Fulkeron v. Chitty, 57 N.C. 244; 1 Underhill on Wills, 419; Hinckley v. Primm, 41 Ill. App. 579; 2 Jarman on Wills, 353; In re Blackstone's Est., 47 Misc. Rep. 538, 95 N. Y. S. 977; In re Egan (1899) 1 Ch. 688; In re Miller, 48 Cal. 165, 22 Am. Rep. 422; Estate of Jacobs, 140 Pa. 268, 21 A. 318, 11 L.R.A. 767, 23 Am. St. Rep. 230.
" Oral Examination in Open Court in Equity Suits. — In all cases in equity the judge before whom the case is pending may at any time before final decree cause any or all of the witnesses to be examined orally before him in open court." Code 1923, § 6574.
This statute is clear and inclusive. It does not admit of the construction that testimony should be first taken by deposition and witnesses thereafter called before the court only for purposes of fuller examination, nor that oral testimony is limited to any special issue or class of witnesses.
The suggestion that a hearing upon oral testimony of witnesses given in the presence of the trial judge deprives the losing party of a right of review, unburdened with a presumption in favor of the findings of fact, affords no good reason for restricting the terms of the statute. To the contrary, the statute aims at affording the best means of getting at the truth of the case in the first instance, and does not look to a review of findings wherein neither court has the advantage of seeing and hearing the witnesses, noting their intelligence and their manner, their bias or want of bias. There was no error in the order directing the taking of testimony orally before the court.
Where there is a will there is in general a presumption against partial intestacy. When the will names all the next of kin, the natural objects of the testator's bounty, and makes provision for each of them, the presumption that he has made a full division of his property between them according to his purpose is stronger. Achelis v. Musgrove, 212 Ala. 47, 101 So. 670; Pitts v. Howard, 208 Ala. 380, 94 So. 495. This, as other like presumptions, rests upon common experience and observation, as applied to wills.
The purpose in view is the selection of those to whom the testator wishes his estate to pass, fix their several interests, and avoid intestacy. In the will before us there is a declared purpose to pass "all the real, personal and mixed property of which I shall die seized and possessed, or which I shall be entitled at the time of my decease." We are not left to presumption, but must deal with this declared purpose as a part of the will itself. However, in spite of the presumption, and in the face of a declared purpose, cases may and do arise wherein there is a partial intestacy.
If the will disposes of specific, definitely described property only, makes special bequests definitely limited in amount, contains no residuary clause, so that, by no reasonable construction of the instrument can it be held to include other property then owned by the testator or thereafter acquired, such property must pass under the law of descents and distributions.
But a will wherein the testator expressly declares a purpose to pass all his property as of the date of his death, yet so written as to abandon this expressed purpose in the same instrument, is unusual and anomalous. The will is thus rendered inconsistent and contradictory in its several provisions. When a testator sits down to write his will with his own hand, having in mind the beneficiaries he wants to take and the estate he proposes to give them, all reasonable intendments will be indulged in favor of a construction of his will carrying out his expressed purposes.
In the "first" item the testator deals with his home place at Strata; makes a specific devise thereof to his daughter Annie Pearl. In the "second" item he turns to his tangible personal property, closely associated with this purpose, the household goods, farm implements, live stock, etc. These he bequeaths to his wife, Mary Frances, and his daughter Annie Pearl under the description, "all personal, perishable property and household goods." In the "third" item he makes a specific devise of his other real estate, located in Crenshaw county, to his other two daughters. In the "fourth" item he first gives his wife, Mary Frances, $5,000 in cash. No special fund or property is expressly charged with its payment. It was payable out of the estate not otherwise disposed of. This estate consisted of money accumulations, represented at the time by cash notes and mortgages. Then follows: "The bal that may be left on hand in cash notes and mortgages shall be turned over to my daughter Annie Pearl." "Balance" as here used is clearly the residue. The clause is residuary in character. Taking the whole scheme of the will in the light of the declared purpose to pass all the property owned at his death, we think the "balance on hand" includes the residue of his moneyed estate. The added phrase "in cash notes and mortgages" is descriptive, rather than restrictive. Thinking in terms of the present form of his moneyed interests, and not then contemplating any change in the form of his securities, he meant to include the balance or residue of his money, whether in cash or invested in income-bearing securities, and not merely so much as should at his death be in cash or in notes and mortgages as distinguished from other forms of income-bearing securities.
The inaptness of the description "cash notes and mortgages" can be accounted for by want of skill in the use of legal terms and lack of facility in accurate expression disclosed by other portions of the will. Thus he designates all forms of tangible personalty as "perishable property"; uses the word "desire" throughout the will for the word "devise." It appears "The bal on hand," etc., was intended as a separate and "fifth" item of the will, inasmuch as the preceding and succeeding clauses are numbered "fourth" and "sixth." Inaccuracies and omissions as here found are considered in passing upon other expressions, and make it the more important to look to the will as a consistent whole, rather than to give a technical meaning to one phrase which would defeat the general intent. Thus reviewed, we consider the final bequest as a residuary legacy passing the Liberty bonds and corporate stock to Annie Pearl Ringstaff, and approve the decree of the lower court so finding.
Affirmed.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.