6 Div. 42.
October 23, 1924.
Appeal from Circuit Court, Walker County; J. J. Curtis, Judge.
A. F. Fite, of Jasper, for appellant.
The law presumes against disinheritance of heirs. Wolffe v. Loeb, 98 Ala. 426, 13 So. 744. Presumption against partial intestacy arises only where an intention to pass the whole estate is expressed. 40 Cyc. 1388b, 1410. Parol proof of testator's intention is not admissible. Simmons v. Simmons, 73 Ala. 235; Alexander v. Bates, 127 Ala. 328, 28 So. 415. The witness who writes the will cannot be permitted to testify what his intention was in framing it. Sharpe v. Hall, 86 Ala. 110, 5 So. 497, 11 Am. St. Rep. 28. There is no ambiguity in the will. Chambers v. Ringstaff, 69 Ala. 141; Black v. Pratt C. C. Co., 85 Ala. 510, 5 So. 89.
Bankhead Bankhead, of Jasper, for appellees.
The testator's intent must prevail, if not inconsistent with the law or public policy. Castleberry v. Stringer, 176 Ala. 250, 57 So. 849; Summers v. Summers, 198 Ala. 33, 73 So. 401, L.R.A. 1917C, 597; 28 R. C. L. 211. For applicable rules in ascertaining intention, see 28 R. C. L. 215; Kidd v. Borum, 181 Ala. 144, 61 So. 100, Ann. Cas. 1915C, 1226; Bell v. Hogan, 1 Stew. 536; Edwards v. Bibb, 43 Ala. 666; Himmel v. Himmel, 294 Ill. 557, 128 N.E. 641, 13 A.L.R. 611; Wooley v. Hays, 285 Mo. 566, 226 S.W. 842, 16 A.L.R. 1; Barr v. Weaver, 132 Ala. 212, 31 So. 488; Fowlkes v. Clay, 205 Ala. 523, 88 So. 651; Myrick v. Williamson, 190 Ala. 485, 67 So. 273; Cook v. Williams, 202 Ala. 637, 81 So. 579; 40 Cyc. 1392; Ann. Cas. 1915B, 11, note; O'Connell v. O'Connell, 196 Ala. 224, 72 So. 81. Parol evidence is admissible, where there is a latent ambiguity. 2 C. J. 1314; Summers v. Summers, supra; 28 R. C. L. 270; Ann. Cas. 1915B, 11 note; Lomax v. Lomax, 6 L.R.A. (N.S.) 956 note; Coulam v. Doull, 133 U.S. 216, 10 S.Ct. 253, 33 L.Ed. 596. Intestacy is to be avoided, if possible, in construction of wills. 28 R. C. L. 227; 40 Cyc. 1409.
The sole issue in this case is whether the description of the lands devised by the testatrix to C. R. Musgrove was intended to, and does, include all the lands belonging to the testatrix not otherwise specially devised. Complainant's contention is that the devise of "my home place, including my dwelling and the land lying contiguous thereto which I own," must be restricted in its application to the premises immediately contiguous to the dwelling house, and inclosed with it under a common fence. The argument, in brief, is that the progress of events has destroyed the former unity of the Musgrove property, and that for some time past it has been divided into a "home place," lying to the north of the railroads, and to the east of Alabama avenue (a platted but unopened street), and a farm lying to the south of the railroads, and a nondescript tract west of Alabama avenue, separated by a fence from the "home place" proper.
Counsel for complainant (appellant here) lays much stress upon the operation and effect of the plattings shown by maps offered in evidence, upon the use of small portions of the property on the west, at various times, for the site of an ice factory, and other purposes dissociated from "home" uses, and upon the fact that the testatrix made one or more deeds to small tracts on the northern side in which she recognized, by the descriptive terms used, the plattings of the Jasper maps, as she did also by descriptions used in the will. In view of these conditions, it is earnestly insisted that the descriptive words in question could not have been intended to apply, or at least cannot be reasonably construed to apply, to those portions of the Musgrove property lying outside of the inclosure surrounding the home-stead proper, and that, those outlying portions, not having been otherwise disposed of by the testatrix in the will, as to them she died intestate, and they pass by descent to her heirs at law.
In ascertaining the testator's intent from the language of the will, the court will place itself, as nearly as possible, in the testator's position, by considering the surrounding circumstances, the condition of his estate and of the members of his family, and his social relations with them. Castleberry v. Stringer, 176 Ala. 250, 57 So. 849; 28 R. C. L. 270, 273, § 244.
In the construction of wills, heirs and heirship are favored by the courts, but this principle is applicable only in cases where the fact of a devise or gift is doubtful under the terms of the will, as where it rests upon implication merely. Schackleford v. Washburn, 180 Ala. 168, 60 So. 318, 43 L.R.A. (N.S.) 1195; Wolffe v. Loeb, 98 Ala. 426, 13 So. 744. It is of no value here, where the ambiguity is in the descriptive phrase of a clear devise, especially since every heir at law is referred to by name, and the property each is to take is specifically stated. And it must be noted that, in making the nominal gift of $1 to the complainant, her granddaughter Louise Musgrove, the testatrix evinced an unmistakable intention to deliberately exclude her from sharing in the estate. McDermott v. Scully, 91 Conn. 45, 98 A. 350, Ann. Cas. 1917E, 407.
On the other hand, it is a well-settled rule that —
"In the construction of doubtful clauses in a will, that interpretation is to be adopted if possible which avoids a partial intestacy, unless it clearly appears that the testator intended to die intestate as to part of his property." 28 R. C. L. 227, § 189, citing numerous cases.
But these, and all other rules of construction, are subordinate to the cardinal rule that the intention of the testator must be ascertained and given effect. They are useful only in aid, not in contravention, of that controlling purpose. Unquestionably, the descriptive language here in question presents a latent ambiguity, which may be removed by appropriate parol evidence showing the circumstances which may illustrate the sense in which the testatrix used it, and thereby give to it a certain meaning and application. Summers v. Summers, 198 Ala. 30, 32, 73 So. 401, L.R.A. 1917C, 597; 28 R. C. L. 270, § 244.
It is a general rule, of course, that parol evidence of a testator's declarations, whether made before or after the execution of a will, are not admissible to show an intention not deducible from the terms of the will, or in contradiction or alteration of its plain and unambiguous language. 40 Cyc. 1433, and cases cited in note 28; 28 R. C. L. 280, § 251; Simmons v. Simmons, 73 Ala. 235; Dozier v. Dozier, 201 Ala. 174, 77 So. 700. But it is well settled that in all cases of latent ambiguity in the terms of a will, in their application to persons or property —
"Evidence of statements or declarations made by the testator at the time of the execution, or about the time of the execution, of his will is admissible for the purpose of identifying the person or property he intended." 40 Cyc. 1435-36; 2 Am. Eng. Ency. Law (2d Ed.) 294; Vandiver v. Vandiver, 115 Ala. 328, 22 So. 154, 2 Prob. Rep. Ann. 355; National, etc., Hospital v. Coleman, 191 Ala. 150, 67 So. 699; McElrath v Haley, 48 Ga. 641; Wadsworth v. Ruggles, 6 Pick. (Mass.) 63; Thomson v. Thomson, 115 Mo. 56, 21 S.W. 1085, 1128; Ackerman v. Crouter, 68 N.J. Eq. 49, 59 A. 574; Scott v. Neeves, 77 Wis. 305, 45 N.W. 421; Bradley v. Rees, 113 Ill. 327, 55 Am. Rep. 422; McDermott v. Scully, 91 Conn. 45, 98 A. 350, Ann. Cas. 1917E, 407.
The distinction is that, while such declarations are admissible to explain the meaning of ambiguous terms, it is never admissible to show terms the testator intended to use.
We have examined the evidence in this case with studious care, and have given due consideration to the views and arguments of counsel, which, however, we cannot review in detail here. Our conclusion, unaided by the declarations of the testatrix made to her scrivener, Judge T. L. Sowell, is that the testatrix intended to dispose of all of her property; that she conceived of her "home place" as including all of the tract held, occupied and used by her from the beginning down to her death, and not merely the small area inclosed by a fence around her dwelling house; and that she intended the entire property to pass by this devise to her daughter, C. R. Musgrove.
We attach no importance to the theoretical divisions shown by the city maps, for it is clear that the testatrix never regarded them as affecting the unity of her property, nor do we think that the passage of the railroads south of her residence, and the fencing off of their rights of way, is entitled to be given any material weight, in determining what she meant by her "home place." Those factors worked no real separation of the testatrix's property, as a matter of fact, and certainly not in her own mind.
The phrase following this general description, "including my dwelling and the land lying contiguous thereto which I own," is not to be regarded as limitational or restrictive, but merely as a particular specification of something to be included in the greater tract. " 'Include' * * * has * * * two shades of the same meaning. It may apply where that which is affected is the only thing included," and "it is also used to express the idea that the thing in question constitutes a part only of the contents of some other thing." It is more commonly used in the latter sense. Dumas v. Boulin, McGloin (La.) 274, 277. " 'Including' is not a word of limitation, rather is it a word of enlargement, and in ordinary signification implies that something else has been given beyond the general language which precedes it." In re Geotz, 71 App. Div. 272, 75 N.Y. S. 751. For other authorities in accord, see 4 Words Phrases (First Series) pp. 3499, 3500.
But, in addition to the considerations stated, we think that the testimony of Judge Sowell, who drew the will, as to his conversation with the testatrix at the time of its making, showing unmistakably her understanding of the meaning of the language used, and her intention by its use to devise all of her lands, including in her "home place" — the land south of the railroad and the graveyard tract — was admissible to show the meaning of the language adopted in the will, and to relieve its application of the latent ambiguity exhibited. The case of Vandiver v. Vandiver, 115 Ala. 328, 22 So. 154, supra, is immediately in point, and is decisive of the question. This evidence leaves no doubt in our minds as to the proper construction of the devise in question, and the decree of the circuit court will be affirmed.
ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.