Baker v. Baker

62 So. 284, 182 Ala. 194, 1913 Ala. LEXIS 443
CourtSupreme Court of Alabama
DecidedApril 17, 1913
StatusPublished
Cited by11 cases

This text of 62 So. 284 (Baker v. Baker) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Baker v. Baker, 62 So. 284, 182 Ala. 194, 1913 Ala. LEXIS 443 (Ala. 1913).

Opinion

MAYFIELD, J.

The bill in this case is duplex. It seeks, first, a construction of the will of George O. Baker; and, second, the quieting of the title to lands devised thereby. The bill is filed by the executors of [199]*199the will for a construction thereof and a proper administration of the trusts created thereby. The testator left surviving him a wife, Belzora, and two sons, Joseph and George, and four daughters, Nellie, Mary, Hattie, and Grace, as the objects of his bequests. The reporter will set out the will in full, so that this opinion may be the better understood.

One of the chief contentions between the parties, and one of the chief questions for decision in the lower court and on this appeal, is the proper construction to be accorded to section seven of the will of Joseph M. Baker, ivkick reads as follows: “It is my will and desire that during the life of my said wife, Lillian Hall Baker, while she is unmarried, she shall only use the income from said estate in her maintenance and support and in the maintenance, education and support of my said children, and the surplus income, over and above such as may be used for the maintenance and support of my said wife and the maintainance, support and education of my said children, shall become a part of the principal of my estate, and shall pass under the provisions of this will, to the same extent as if it were a part of my estate at the time of my death. My said wife shall have the absolute discretion in using such income, and in determining what part of such income shall be used for the maintenance, education and support of my said children, and in determining what part of such income shall be used for her own maintenance and support.”

The following facts are practically admitted:

(1) That after the death of the widow of the testator, George O. Baker, the shares of the two sons, Joseph M. Baker and George L. Baker, were set apart to them, and the shares of the daughters were held in further trust for them and administered as provided in the will.

[200]*200(2) That at the death of the said widow all the children of the testator were living.

(3) That subsequent to the death of said widow one of the daughters, namely, Mabel, died, leaving no issue, having never married.

(4) That subsequent to the death of said Mabel one of the sons, name, Joseph M. Baker, died, leaving his widow, Lillian H. Baker (now his executor), and two minor children, George Baker and Belzora Baker.

(5) All the other children of said testator, George O. Baker, are still living.

The prayer of the bill important to this consideration was as follows: “That this court take jurisdiction of this cause for the purpose of advising and instructing said executor and trustee how said trusts shall be performed in so far as the setting apart and division of the share of Miss Mabel Baker is concerned, and if the court holds that the two children of Joseph M. Baker have an interest, present, vested or contingent, in the part of the estate which will be set apart and divided upon the death of each of the now living daughters of said testator, that the executor and trustee be authorized and empowered to sell at private sale the above-described lots of land in Birmingham for the purpose of making-said division, and that the court further construe said will, settle the doubts and difficulties above stated, and quiet the title of the adult beneficiaries of said will as against the reputed claim of said minor children of Joseph M. Baker, deceased.”

The part of the decree pertinent to this decision is as follows: “That the share of Miss Mabel Baker, déceased, in the property and estate of the late George O. Baker, now being administered and rightfully belonging to the trusts of said will, is an undivided one fifth (1/5) part of all of said estate and property remaining [201]*201since the shares of his two sons were set off to them, as provided by said will to be, and as was done, which one-fifth part is hereby declared and adjudged to be separated and set apart from said property and estate, and is ordered and decreed to be divided and is hereby divided among the following named persons, parties to this suit, etc. Title to that part of the estate of George O. Baker represented by the shares of the income enjoyed by the daughters of said testator vested and will vest in the issue of said daughters who have had or will hereafter have issue, subject to be divested by said issue dying before the respective mothers die, and that at present the adult beneficiaries who constitute the living issue of the living daughters of the testator, and who are made parties complainant to said bill of complaint as amended, namely, Mrs. Belzora P. Elebash, Miss Mary Parrish, and Joseph P. Parrish, children of Mrs. Mary B. Parrish and Albert E. Parrish, the only child of Mrs. Hattie B. Parrish, are the sole owners of those shares of the estate of George O. Baker, deceased, which are represented by the income which the respective mothers of said children are now enjoying or are entitled to enjoy under said will, and that the infant children of Joseph M. Baker, deceased, are entitled by the provisions of said will to no interest, present or future, and will never be entitled to any interest in those parts or shares of the said estate Avhich are to be set apart upon the deaths of the noAv living daughters of said testator.”

After a careful examination of the record, together Avith the authorities cited by the appellant, Ave have reached the conclusion that the chancellor or judge trying this case announced the correct construction of this will touching the subjects of controversy in this suit, and we adopt, as expressing our views, the part of his [202]*202opinion which reads as follows: “The most important question involved in this submission is whether under the will of testator the children of Joseph M. Baker, now deceased, will be entitled to participate in the shares of such testator’s daughters as may hereafter die without issue. And this raises the question as to whether the words ‘surviving brothers and sisters’ used in the seventh clause of the will shall be taken in their primary or ordinary sense, in other words, held to mean just what they say; or whether, viewing the will as a whole, a more extended meaning shall be ascribed to them so that they may include the issue of such of them as may have died. The language of this seventh clause is: ‘At the death of either of my daughters without issue, her share of my estate shall be equally divided between the surviving brothers and sisters, share and share alike.’ It is, of course, true that the intent and purpose of the testator must govern, and this must be derived from a consideration of the will in all its parts. But it is also true that among the rules of interpretation of wills firmly established by our Supreme Court are that, when the terms of a will are unambiguous, there is no room for construction; that the words used therein must be taken in their primary sense; that to depart from this primary or ordinary sense requires clear demonstration, apparent from the will itself, of the enlarged meaning, and that we may not infer the intention of the testator merely from our impressions as to what it would have been natural for the testator to do. — Russell v. Russell, 84 Ala. 48 [3 South. 900]; DeBardelaben v. Dickson, 166 Ala. 59 [51 South. 986]; McQuire v. Westmoreland, 36 Ala. 594; Continental Life v. Webb, 54 Ala. 688; Phinizy v. Foster, 90 Ala. 262 [7 South. 836].”

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Bluebook (online)
62 So. 284, 182 Ala. 194, 1913 Ala. LEXIS 443, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baker-v-baker-ala-1913.