6 Div. 860.
May 1, 1919.
Appeal from Circuit Court, Pickens County; Henry B. Foster, Judge.
M. B. Curry, of Carrollton, for appellant.
Patton Patton, of Livingston, for appellee.
Paragraphs 6 and 11 of the will of J. E. Stewart, deceased (complainant's father) concern the estate of complainant as devised by the terms of said will, and by this proceeding a construction of these provisions is sought.
It is a legal truism that the cardinal rule — the one above all other rules — for the construction of a will is to ascertain the intention of the testator and give it effect, if not inconsistent with the law.
"This intent must be gathered * * * from the language used in the will, and by this is meant that such intention shall be gathered from the four corners of the instrument; that is to say, from the whole will, the whole frame of the will, the whole scheme of the testator manifested by the will, taking into consideration and giving due weight to every word used in the will." Myrick v. Williamson, 190 Ala. 485, 67 So. 273; O'Connell v. O'Connell, 196 Ala. 224, 72 So. 81.
"Words used in a will must be taken in their primary sense, and to depart from this primary or ordinary sense requires clear indication, furnished by the context, that they were used in a different sense." Shuttle v. Barker, 178 Ala. 366, 60 So. 157; Baker v. Baker, 182 Ala. 194, 62 So. 284.
The sixth paragraph of the will provides for the appointment of an active trustee to manage and control the property devised to complainant, which was given to her only during the term of her natural life.
We think the language of the will clearly indicates that the trustee should continue in the management and control of said estate during the complainant's life. Had the testator intended to limit such trust to the period of complainant's minority, it would have been an easy matter to have so indicated. On the other hand, there are directions as to what the trustee shall do with the property which he will have on hand in the event the complainant should die without surviving child or children.
In construing this provision of the will, we must also look at the whole will and the whole scheme of the testator, as evidenced thereby. And in doing so, we find similar provisions in reference to others who were objects of his bounty, particularly the granddaughter provided for in the seventh paragraph of the will. The language used in reference to the estate of said granddaughter, and the trustee to be appointed for the management thereof is strikingly similar to the provisions for the complainant. As to this granddaughter, it is specially provided that all interest on loans shall be collected annually, and enough applied as required for the maintenance and education of said granddaughter during her minority. Then follows this provision, "But after she is an adult, the trustee is required to pay to her annually all profits of all kinds arising from any and all money he may have on hand." thereby clearly indicating that as to this granddaughter, the trustee is not appointed only during her minority, but that the same continues after she becomes an adult.
The testator had a perfect right to devise his lands to a trustee for the purposes herein named. As to the wisdom of such course we are not here concerned. The only question for the courts is as to ascertaining the intent of the testator and carrying that into effect, if not inconsistent with the law.
Viewing the entire will, and the whole scheme of the testator as evidenced thereby, and giving to the words used their primary and ordinary meaning, we are of the opinion that it was the intention of the testator, and his plain purpose, to appoint a trustee for the management of complainant's estate during her life.
Paragraph 11 deals with the sale of the timber on the lands, and we are of the opinion that it was the intention of the testator to treat the timber on the lands devised to the complainant as a part of the body of her estate, and that any proceeds therefrom should be loaned out by the trustee and the interest paid to the complainant. In this paragraph it is expressly provided that the proceeds of the timber sold from the lands devised to the wife and the two sons, who were of age, should "become their money, respectively, and in fee simple," and then follows the provision "that the money so received by the trustee or trustees for the respective persons shall be subject to all the terms and conditions as required of the several trusts in this will." By this language a clear distinction is made between the disposition of the proceeds of the sale of timber as to the wife and two sons and that which was to be managed by the trustees.
It is, of course, well understood that a trust estate of this character ceases as soon as the purposes of its creation have been accomplished. Edwards v. Edwards, 142 Ala. 267, 39 So. 82. But in the instant case, as we construe the will, it was the purpose of the testator, so far as this complainant is concerned, that her estate be managed and controlled by a trustee during her life. This view is in accord with that of the learned judge below, as disclosed by his opinion which appears in the record.
It appears without dispute that the trustee is in the discharge of his duties in a proper manner, and the bill seeking his removal was properly dismissed.
The decree appealed from will be here affirmed.
ANDERSON, C. J., and McCLELLAN and SAYRE, JJ., concur.