Davis v. Bennett's Ex'x , 272 Ky. 674 ( 1938 )

In expressing the reasons for my dissent I shall do so briefly — contenting myself with stating fundamental rules and which are acknowledged by attorneys for both sides to the litigation, as well as by the court in the majority opinion, and I will in some instances attempt to fortify them with adjudged cases or authoritative texts — which course I have adopted for the sake of brevity. My disagreement with the majority opinion is confined to the interpretation it gives to the will of Samuel Bennett, whereby it is held that his surviving widow was devised a defeasible fee-simple title to the property involved, instead of construing his very plain and unambiguous language so as to vest in her, according to my conception, in no event an estate in excess of one for her life, subject to be curtailed (not defeated) by her remarriage. I am not so sure as to whether the opinion correctly approved the proposed mineral lease to be given upon the land involved. That question is shrouded in some doubt, but I have determined not to take issue with the majority upon it and shall, therefore, confine this dissent exclusively to what I conceive to be the single error indicated.

In volume I, second edition of Tiffany on Real Property, page 79, the text says: "In spite of the modern statutes dispensing with words of inheritance and creating a presumption of an intention to give an estate in fee simple, a gift to one until marriage, or during widowhood, ordinarily receives the same construction as at common law, as being intended to create a life estate only, determinable on marriage." In note 46 to that text there are cited in support of it cases from the highest courts of California, Illinois, Iowa, Kentucky, Maine, Massachusetts, Mississippi, Nebraska, New Jersey, North Carolina, Pennsylvania, South Carolina, and Texas. The case from Kentucky is that of Morgan v. Christian, 142 Ky. 14,133 S.W. 982. The will in that case said: "I will my wife Sarah B. Tanner, 64 1/2 acres more or less of land, the home farm, and I also will Sarah B. Tanner 87 acres more or less. * * * She also can hold this entire property or depts this is my will so long as she remains my widow, and if she marries, the lower tract of land will be equal divided between the boys and Lizzie Tanner home farm." The piece of land last referred to in that excerpt is clearly and indisputably the 64 1/2 acres that he devised to his wife in the first sentence of that clause of his will, which is the first one. The language filling the place of the asterisks disposes of other land and property and has no bearing at all upon the question at issue, i. e., the character of estate that the widow took in and to the 64 1/2 acres of land devised to her "so long as she remains my widow," with an immediately following proviso that when she ceases to be his widow that tract of land will be equally divided between the boys and Lizzie Tanner. We held that she took only a defeasible life estate which ceased and became forfeited upon her remarriage, at which time she ceased to be the testator's widow within the definition of that term as applicable to the measurement of duration of estates held "during widowhood," regardless of the power that might be exercised by the widow while continuing to occupy that status.

Therefore, the surplus language contained in the second clause of Mr. Bennett's will, whereby all of his property of every kind and description was intended to be embraced therein, and whereby he said "to be hers and subject to her use and for her benefit, so long as she shall remain a widow, after my death, and until she shall remarry," is descriptive only of the character and extent of use to which his widow as life tenant may appropriate and employ the property during widowhood. But it will be observed that no power of sale is therein contained, and in enumerating the uses — or rather in describing the boundaries and limits thereof — he did no more than what the law would have attached by clear implication in the absence of such words.

In the case of Napier and Wife v. Davis, 7 J. J. Marsh. 283, the testator gave property to his wife "during her widowhood." He then went on to make other provisions upon the contingency of her remarriage, etc., and Judge Robertson, in writing for the court construing the will, said: "The will was not drawn with as much precision as is always desirable and important in such cases; and therefore the intention of the testator may be somewhat doubted. But taking the first clause of the will by itself and construing it according to the letter — the punctuation, the rules of grammar and of common sense, it should be interpreted, we think, as limiting her entire interest to her life or widowhood. The whole will, taken together, does not change the import of the isolated devise to the widow. There is nothing in any other part of the will which is inconsistent with our construction of that clause, or which tends to establish any other interpretation."

Likewise, I am of the opinion that none of the clauses of the will — following its second one wherein Mrs. Bennett was given the property of the testator "so long as she shall remain a widow, after my death" — "taken together, does not change the import of the isolated devise to the widow," made in the second clause of testator's will, since there is nothing in the other clauses "which tends to establish any other interpretation." Therefore, I am firmly of the opinion that "taking the first (second one in this case) clause of the will by itself and construing it according to the letter, the punctuation, the rules of grammar and of common sense, it should be interpreted * * * as limiting her entire interest to her life or widowhood."

But the majority opinion cites in substantiation of the contrary interpretation (i. e., that the will should be construed as devising to the widow a fee in testator's property subject only to be defeated by her remarriage) these cases: Hinkle v. Hinkle, 168 Ky. 286, 181 S.W. 1116; Riner v. Fallis,176 Ky. 575, 195 S.W. 1102; Prindible v. Prindible, 186 Ky. 280, 216 S.W. 583; Walton v. Jones, 216 Ky. 289,287 S.W. 710; and Hutter v. Crawford, 225 Ky. 215, 7 S.W.2d 1043. I have carefully examined and read them more than once, and find that only two of them (Hinkle v. Hinkle and Walton v. Jones) have any bearing upon the question for solution. The other three (Riner v. Fallis, Prindible v. Prindible, and Hutter v. Crawford) were instances where the wife was given an undoubted fee-simple title to the property devised her without any qualifying or modifying words whatever attached thereon, but to which was added a defeasance clause in case of remarriage. If the will in the instant case had omitted and failed to attach as qualifying language to the estate given the wife in the second clause of the instant will, the word "so long as she shall remain a widow, after my death, and until she shall remarry," then this case would be one on all fours with the Hutter, Prindible, and Riner cases, each of which, however, like the other two cited ones, recognize the right of the testator to cut down by subsequent language a larger estate given to the first taker by previous language. That right permits the cutting down of a life estate the same as cutting down a fee-simple estate in the same manner.

It must be admitted, however, that the Hinkle, Walton and Riner cases appear to support the interpretation given by the majority opinion, but I have investigated the question from every angle and have found that those two opinions are, not only in direct conflict with all recognized and authoritative texts upon the question, but likewise in conflict with the decisions of other courts, some of which are cited supra, and also in conflict with the Morgan v. Christian domestic case, supra. Not only so, but that interpretation commits brutal violence, according to my conclusion, to plain and unambiguous language employed by the testator in the instant case and disregards, as I conclude, both logic and common sense in the interpretation of his language and in carrying out his evidence intent and purpose clearly expressed.

It is universally admitted that the cardinal and supreme rule for the interpretation of wills is to ascertain the intention of the testator from the language he employed. His expressed wish as contained in that language, together with necessary inferences to be drawn therefrom, will be adopted as the way and manner that his will should be enforced. All other rules are subservient to that one, and, when the intent can be so gathered, then all other subordinate rules surrender. If testator intended in this case to devise his wife a fee-simple title by the second clause of his will, there would have been no use whatever in his inserting therein the language "so long as she shall remain a widow," etc. That language, according to the majority opinion, was pure surplusage and accomplished no result whatever, in spite of the fact that there is a subordinate rule for the interpretation of wills to the effect that all language should be given some import if it is at all reconcilable with other parts of the instrument to be interpreted. It would seem, therefore, that according to the majority opinion the testator could not — though it was his purpose to do so — have created in his wife a life estate without the use of the precise words "for and during her life." But it is conceded that her widowhood ended with her life, and, as words of measurement of the duration of an estate, logic would require that they be construed as synonymous.

Moreover, the inevitable result of the interpretation given by the trial court to the Bennett will — and which the majority opinion approves — is to divert the property of the testator, in case his widow does not remarry, to her people alone, who would take it, in case of her intestate death, as her collateral kindred, thereby leaving out and excluding altogether the heirs of the husband whose property it was at the time he made his will. There is a presumption in the law that wills should be interpreted — if it may be done without violence to some of its terms — so as to vest the property in the blood relatives of the testator, rather than to divert it upon the happening of a contingency to strangers in blood.

It is my conclusion that the testator had that in mind and that, although he did not by express terms provide for the vesting of the property after his wife's death if she remained his widow until then, yet he did so by necessary implication when he provided in the fourth clause of his will the disposition to be made of his property if his wife should remarry. That clause served only to cut down the right of the wife to the entire income, and to reduce her right, as given to her by the second clause of the will, to an annuity of $200 per month, with the remainder of the income (following the remarriage of his wife) to be equally divided until her death — and the corpus after her death — between his brothers and sisters, and her brothers and sisters, or the issue of any of them who may have died. It is my interpretation that in drafting his will testator concluded (or was of the impression) that after he made the first provision of what should be done with his property upon the happening of the first contingency affecting his wife's interest (her remarriage) that such provision would apply to the happening of either contingency, whichever one occurred first. Therefore, it was his conception, when he provided for a redisposition of the proceeds of his property upon the occasion of his wife remarrying, that such provision would also attach to its corpus after her death terminating her life estate, although she may have never remarried. If that interpretation should be followed, then Mr. Bennett did not die intestate as to any of his property and it is my conclusion that the rule requiring an interpretation of no intestacy rather than one that would produce intestacy authorizes the interpretation so advanced by me.

But, if I should be mistaken in that, then we are confronted with the baldfaced common sense proposition that the testator in the second clause of his will gave to his wife nothing more than a life estate in his property. In that event (if the interpretation as to future takers after the widow's death unmarried, hereinbefore advanced, should be rejected) the testator's collateral kindred would inherit his property under the laws of descent and distribution after his widow's death in case she did not remarry. But instead of the property thus going to his blood relatives, the interpretation given by the majority opinion diverts it exclusively to the blood relatives of his wife — by giving her the fee if she does not remarry — and which destroys the plainly just and equitable desire of the testator that, after his wife's interest in his property ceased, by the happening of either of the contingencies designated in his will, then his relatives, and her relatives, should become joint owners thereof. But that just, considerate and highly commendable purpose on the part of the testator is to be disregarded and wholly destroyed, and at the expense of sacrificing reason and logic — as well as fundamental principles of interpretation — as contained in authoritative text writers and all of the opinions of the courts except, perhaps, the two domestic cases supra, of Hinkle v. Hinkle and Walton v. Jones, neither of which refers to the prior Morgan domestic case, nor to the Napier opinion of Judge Robertson, nor do they cite any other domestic case in support of the conclusions adopted.

To my mind the majority opinion gives to the rule — supporting an interpretation that would produce testacy instead of intestacy — more force than should be attributed to it, when to do so is in the face of plainly expressed terms of the will, as well as thwarting the manifest intention of the testator. In this case Mr. Bennett obviously gave to his wife only a life estate by the second clause of his will, standing alone, and which the opinion in this case concedes as I construe it. But it is attempted to be shown that he enlarged that life estate into a fee by certain provisions that he made in following sections of his will, and but for which his wife would have received, in no event, an estate in his property beyond her widowhood which — unless terminated sooner by her remarriage — would inevitably terminate at her death. In other words, the interpretation given to the will by the majority opinion enlarges the estate given to the wife in its second section, and that interpretation is based almost exclusively on the fact that there is no express limitation over of the property after the wife's death without having remarried. But in looking up the declared law on such a situation I find that the text in 17 Rawle C. L. 623, sec. 12, says: "Just as the devise of a fee may be reduced to a life estate by subsequent language in a will, so subsequent clauses or words in such instrument may make clear the intention of the testator that a fee was intended to pass by a devise which standing by itself would convey merely a life estate. It would seem, however, that the failure to make alimitation over after an express life estate, while a circumstance of some weight, is not in itself sufficient to enlarge the life estate to a fee." (My italics.) Cases cited in note 18 to that text are in complete accord with it and I am convinced that it embodies a sound and logical principle of law.

Finally — I construe the instant will, as if it had been written — "I give, devise and bequeath to my beloved wife all of my property of every kind and character, and wherever situated, so long as she shall remain a widow after my death; but if she should re-marry, then she shall obtain therefrom only $200.00 per month from its income and the balance be distributed equally between her brothers and sisters, and my brothers and sisters, and the same disposition shall be made of the corpus at her death." The useless details attempted to be set forth by the testator in his will do not detract from what should be its correct interpretation as if it were couched in the condensed language in which I have put it. I shall not attempt to lengthen the discussion, although I am convinced that the interpretation I have herein made could be more convincingly established if I should devote more time and space in an effort to do so.

For the reasons stated, I most respectfully dissent.