Opinion
November 14, 1950. Rehearing Denied December 12, 1950.
Appeal from the Circuit Court for Duval County, Claude Ogilvie, J.
Harry H. Martin, Jacksonville, for appellants.
Chester Bedell, and Frank Thompson, Jacksonville, for appellees.
In this appeal we are concerned with the interpretation of the will of Mary E. L'Engle. Under one construction certain property would go to the appellants, trustees; under another, to appellees, residuary legatees.
Mary E. L'Engle was the daughter of John C. L'Engle and the sister of E.J. L'Engle. The father died first, the son next, and the daughter last, and all left wills. When the father died he owned, among other properties, two parcels of land outright, and he and his son each owned an undivided half interest in a third, which three tracts we shall for convenience designate respectively "A," "B," and "X." He devised to his wife, his son, and his daughter each a third interest in the first two parcels and a sixth interest in the last, that is, a third of his undivided interest. When the widow died, the son and daughter brought a suit for partition, and eventually purchased at the sale the title of the widow in the three tracts; so then Mary E. L'Engle and E.J. L'Engle each owned an undivided half interest in tracts A and B; the former owned an undivided fourth and the latter an undivided three-fourths interest in parcel X.
We see no need of complicating the facts by mention of the disposition of E.J. L'Engle's interest made in his will, but shall proceed immediately to the will of the sister, only two paragraphs of which it seems necessary to analyze, the first and the next to the last, the residuary provision. In the first, primarily involved, is the following language: "I give * * * to my brother * * * my * * * interest in the estate of my father * * * and in the property which I own or am entitled to as one of the heirs or devisees under my father's will, and the * * * income * * * thereof, including all * * * securities * * * purchased with funds or property devised and bequeathed to me by my father, or with funds arising from the * * * income, profits or sale of property left by my father, * * intending hereby to include all my undivided interest in all the property left by my father, * * * and in the * * * income and proceeds thereof * * *. If my brother * * * shall die before me [this came to pass], then I give * * * the property in this paragraph * * * described to the Trustees named in the Eighth Paragraph of this will * * *." Parenthetically, these trustees were charged with affording musical education to Jacksonville children selected by them.
On the construction of the words we have italicized depends the decision of this controversy; and, that they may be more easily understood, it is fitting to place the interests we have described in two categories, i.e., those inherited by Mary E. L'Engle from John C. L'Engle and those devised by him to his widow and subsequently obtained by his daughter at a partition sale instituted by her and her brother.
The appellants insist that the testatrix meant in this clause of the will to devise to her brother not only the property received by her direct from her father, but also the property left by him to his wife and subsequently purchased in the partition suit. If this is sound, then, of course, since the brother predeceased his sister that very property would go to the trustees. On the other hand, the appellees, fortified by the finding of the master and the decree of the chancellor, contend that the sister intended to devise to her brother only that property received direct from her father, and property purchased with money from that source, so that property only would go to the trustees, while the interest testatrix got as the result of the partition decree would descend to the residuary legatees.
The intention of the testatrix governs, as we have often said, and that intention must be ascertained from the language employed in the testament. In our opinion the language we have emphasized in quoting from the will conveys clearly the idea of the testatrix, and from our study of it we meet little difficulty in agreeing with the master and the chancellor that she purposed to retain the identity of the very lands she had received from her father and such property as represented what she had received in money from that source and to funnel it to her brother. She was at pains to define such property as that received as one of his heirs, as purchased with funds devised to her by him or with money coming from property left by him. By way of explanation, but not, according to our view, in an enlargement on what immediately preceded, she added that it was her intention to include all the undivided interest in all the property left by the father, and this statement should be read, in the light of the phraseology immediately preceding it, as if it had been written "left me by my father," and being so read it would not change what the testatrix had in mind. Thus to go beyond the bounds of this quoted part of the will in the search for the true design of the testatrix should not invite the criticism that her intention would thereby become distorted.
We repeat, these provisions do not relate to the interests devised to the wife and subsequently obtained by the daughter through partition with funds not having had their origin in the estate of the father; and in arriving at this conclusion we have not overlooked the practical effect of the will when so construed, that is, the brother having died first, property got directly from the father would not descend to the blood relatives, the residuary legatees, but to the trustees, and the ownership of tracts A, B, and X would become complicated because shared by the trustees under the will of E.J. L'Engle, the trustees under the will of Mary E. L'Engle, and the residuary legatees.
Tracts A and X adjoin, are of different dimensions, and on them is situated a commercial building which faces both Bay and Main Streets in the City of Jacksonville. Because of their unequal sizes and the possibility that the frontage on one street is more valuable than the frontage on the other, it was most difficult to compute the shares of rent from the whole property which should go to the testatrix and her brother; so during his lifetime the brother, who owned the larger proportion, agreed that he and his sister should divide the income equally. After his death, by direction in his will that his sister continue to receive one-half this rental, the arrangement was honored by the trustees of his estate.
In the present case it was established by the testimony that the interest of the testatrix was 42.25 per cent of the whole property covered by the building; therefore the master, recognizing the original agreement between brother and sister and the continuance of it between her and his trustees for the life of the lease to expire in 1957, and taking into consideration the testimony as to the proportionate interests, recommended, and the chancellor confirmed, a distribution of the income so that the residuary legatees would receive 7.75 per cent and 14.0833 per cent, while the trustees would get 28.1667 per cent. We are not disposed to disturb this division.
We must approve also the finding of the master and the decree of the court with reference to the assessment of costs, a discretionary matter, and the declination of the court to assess against the estate the attorneys' fees and expenses incurred by the trustees in this controversy.
Affirmed.
ADAMS, C.J., TERRELL and ROBERTS, JJ., concur.