Opinion
7 Div. 775.
June 30, 1928.
Appeal from Circuit Court, Etowah County; Woodson J. Martin, Judge.
O. D. Street Son, of Birmingham, for appellants.
The fact, if it be a fact, that the will does not properly bear the interpretation contended for by appellants was not ground for sustaining the demurrer to the amended bill. Powell v. Labry, 207 Ala. 117, 92 So. 266. An independent bill lies to construe a will, where it is of doubtful meaning. Carroll v. Richardson, 87 Ala. 605, 6 So. 342; Hollingsworth v. Hollingsworth's Ex'rs, 65 Ala. 321; Cowles v. Pollard, 51 Ala. 445; 40 Cyc. 1838. An appeal lies from the decree dismissing the bill, and the previous rulings on demurrer are reviewable on such appeal. Tierce v. Knox, 207 Ala. 121, 92 So. 263; Crowson v. Cody, 215 Ala. 150, 110 So. 46.
Dortch, Allen Dortch, of Gadsden, for appellees.
Where the will appears to have been drafted by an unskilled person, the court will take that into consideration in its effort to discover the intention of the testator. Jordan v. Ringstaff, 213 Ala. 512, 105 So. 641. Where there is a will, there is a presumption against partial intestacy. Jordan v. Ringstaff, supra; Pitts v. Howard, 208 Ala. 380, 94 So. 495; Strawbridge v. Strawbridge, 220 Ill. 61, 77 N.E. 78, 4 L.R.A. (N.S.) 948, 110 Am. St. Rep. 226; In re Donges' Estate, 103 Wis. 497, 79 N.W. 786, 74 Am. St. Rep. 885; Pate v. Bushong, 161 Ind. 553, 69 N.E. 291, 63 L.R.A. 593, 100 Am. St. Rep. 287; Lavender v. Rosenheim, 110 Md. 150, 72 A. 669, 132 Am. St. Rep. 420. When a will names all the next of kin the natural objects of the testator's bounty, and makes provisions for each, the presumption is that he made a full division of his property. Jordan v. Ringstaff, supra; Achelis v. Musgrove, 212 Ala. 47, 101 So. 670; Pitts v. Howard, supra. A legacy not limited to a special fund is payable out of the general funds of the estate not otherwise disposed of. Jordan v. Ringstaff, supra. A nominal gift to an heir evinces an unmistakable intention to deliberately exclude such heir from sharing in the estate. Achelis v. Musgrove, supra; City Bank v. McCaa, 213 Ala. 579, 105 So. 669. A will may be construed on demurrer to bill of complaint. City Bank v. McCaa, supra.
The only question presented for review by this appeal is the validity vel non of the specific construction of the testator's will, as contended for by the appellants, who were complainants below.
When the bill of complaint seeks to establish a specific construction upon which its equity and the asserted rights of the complainant depends, the validity of such a construction may be tested, as here, by demurrer to the bill. City Bank Trust Co. v. McCaa, 213 Ala. 579, 105 So. 669.
Complainants' theory of the will is that, apart from the small specific legacies given to these complainants in paragraphs 2 and 3, the only testamentary disposition of personal property is found in paragraph 7, and that this paragraph, inasmuch as it directs a sale of testator's personal property, though of all of it, cannot reasonably be intended to apply to cash money or to notes and accounts payable.
In construing wills resulting partial intestacy is always avoided by the courts unless a contrary intention on the part of the testator clearly appears (Achelis v. Musgrove, 212 Ala. 47, 101 So. 670); or, as otherwise expressed, "there is in general a presumption against partial intestacy" (Jordan v. Ringstaff, 213 Ala. 512, 105 So. 641; Pitts v. Howard, 208 Ala. 380, 94 So. 495).
So, also, when the testator specifies and gives to one or more persons a money gift of small or nominal amount, it is regarded as clear evidence of his intention to exclude such person or persons from any other participation in his estate. Achelis v. Musgrove, supra; Jordan v. Ringstaff, supra.
As is plainly apparent upon the face of this will, the testator was not a man of education, and was not skillful in the expression of his ideas. Perhaps at the time he made the will — nearly two years before his death — his personal estate consisted mostly of property other than money and debts due to him, which would have to be sold in order to pay legacies and debts and permit a division of the residue. His thoughts, lacking in circumspection, contemplated primarily the disposition of his personal property, and not its form, whether in cash or choses in action, or chattels. Had he thought circumspectly he would of course have understood that a direction to his executor to sell cash, or notes or accounts, was inapt or unwise; and, in disposing of the residue of his personal property, he would have said, "Then the residue of my personal property, if any, shall be divided equally" between the two sons named. Interpreted narrowly and literally, "the residue," as written in the will, would be restricted to the proceeds of the executor's sale; but that, we are certain, was not its meaning, for that would contradict the manifest spirit and purpose of the will as a whole. We think he meant the residue of personal property — all of it — after the payment of debts and legacies.
But, conceding the inaptness of the clause as applicable to money, and its unwisdom as applicable to choses in action, and interpreting it literally, there is no escape from the conclusion that the testator meant to dispose of all of his personal property whatever its form; for he said, "I further direct that my executor sell all my personal property that I may die seized or possessed, or to which I shall be entitled at my decease"; and it was the residue of this whole that he disposed of as stated. This language, apart from other opposing considerations, does not permit any rational inference that he was mentally dividing his personal property into two classes, money and choses in action on the one hand, and general chattels on the other which he intended to dispose of differently, the one passively by the laws of descent and distribution, and the other actively by testamentary provision. Money is personal property, of course, and so are choses in action, and they were all as plainly and as necessarily included in the testator's phrase, "personal property," as if they had been mentioned by name. Whether it is the executor's duty to sell them, as inaptly directed, is a matter to be determined by the executor himself under the supervision of the court. There will be no practical difficulty about that. The sale was designated solely for the purpose of enabling the executor to pay legacies and debts and then to make distribution between the two residuary legatees; and it can be of no possible concern to debtors or legatees, if their claims are satisfied by the executor, whether the personal property, or any of it, is sold or not.
An excellent example of common-sense construction to effectuate the general testamentary intention will be found in Jordan v. Ringstaff, 213 Ala. 512, 105 So. 641, holding that a residuary bequest of property described as "cash notes and mortgages" included Liberty bonds and preferred stock of a corporation.
We are fully satisfied that the testator intended to dispose of all of his personal property of every kind, and that that result was accomplished by paragraph 7 of the will, fairly and consistently construed.
It results that the bill of complaint is without equity, and the demurrer was properly sustained; and, complainants declining to amend, the bill was properly dismissed.
The decree is therefore affirmed.
Affirmed.
ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.