Cannon v. Ewin

77 S.W.2d 990, 18 Tenn. App. 388, 1934 Tenn. App. LEXIS 41

• Court: Court of Appeals of Tennessee
• Decided: August 8, 1934
• Status: Published

Opinions

DeWITT, J.

Mrs. Sue P. Allen, widow of B. B. Allen, died testate leaving a large estate. She had no children, and her nearest relatives were two half-sisters and two half-brothers, bnt at the time of her death, two half-sisters and one half-brother were surviving.. •This half-brother was the defendant and cross-complainant Ben D. Ewin, Sr. He had no estate or income. Mrs. Allen’s will contains the following:

. “I give and bequeath to my brother Ben B.. D. Ewin the sum of Seven Thousand ($7,000) Dollars.”

The will was executed by her on March 27, 1923. At that time she was surety on notes of her said brother aggregating $6,675. On October 15, 1926, she paid all these notes off. He executed a note to her for $6,970, and he paid interest on it for four months. The note was among the assets of Mrs. Allen at the bank at the time of her death. With interest it amounted to approximately $7,000. Mr. Ewin testified in answer to a question on cross-examination that he gave this note to Mrs. Allen upon his own suggestion, that she did not want to take it, and would not take it until he insisted upon it. His testimony to this effect on his original examination was objected to and the objection sustained; and this testimony was given on cross-examination in response to questions asked. The executor refused to pay him the amount of the bequest, insisting that it should be applied on the note.

The original bill in this cause was filed by Newt Cannon, Jr., claiming as creditor of Ben D. Ewin, Sr., to subject the proceeds of the legacy to the payment of his claim. The Nashville & American Trust Company, executor, resisted such appropriation of the legacy on the ground that Ewin owed his sister’s estate the note of $6,970, with interest, equal in amount to the legacy, and therefore he was not entitled to have the legacy paid to him. Ben D. Ewin, Sr., filed an answer and a cross-bill in which he denied liability, set up the defense that his sister had given to him. the note, and also “that it was the true intent and purpose of his said sister to bequeath him the sum of $7000 free and clear of any claim or encumbrance; that on divers occasions and to divers persons, after the payment of said note by her and prior to her death, she stated that said note had been discharged; that the sum thereby expended by her was a gift; that said note was not to be held against this cross-respondent in any wise, nor was he to be held accountable or responsible for the payment of same or any part thereof, as she did not desire to show a preference to other members of the family who had been given large sums of money without being required to pay same.”

A jury was demanded and issues were made up by all of the parties under the direction of the court. The first three issues related to the question whether or not Mrs. Allen had, during her lifetime, made a gift of the aforesaid sums to Mr. Ewin and in effect canceled the note. The fourth issue submitted to the jury was as follows:

“Was it the intention of the said Mrs. Sue P. Allen to leave the said Ben D. Ewin, Sr., the legacy in her will free, clear and unimpressed, by any claims or demands of her estate upon Ben D. Ewin, Sr.?”

The jury answered all of these four issues in favor of Ewin. A decree was entered sustaining the answer and cross-bill of Ben D. Ewin, Sr., and ordering that the executor pay to him the sum of $7,000 in the administration of the estate, free from any claim or offset by reason of his note for $6,970 of October 15, 1926. It was specifically declared in said decree that this note was in the lifetime of Mrs. Allen canceled and in effect delivered up to her said brother and was merely held by the Nashville & American Trust Company as agent for Ben D. Ewin, Sr. The language of the decree, fully sustaining the cross-bill, fairly includes the finding on issue No. 4. This issue was directly responsive to the issue tendered by the aforesaid paragraph of the answer and cross-bill of Ben D. Ewin, Sr., to the cross-bill filed by the executor. The executor made no objection to the issues as made up and submitted to the jury, and where a case is tried on the theory that certain issues have been formally raised, it cannot be objected for the first time on appeal that such issue.s were not in fact joined by proper pleadings. 2 R. C. L., 81, and cases cited.

We hold that the fourth issue was a material issue, proper to be submitted to the jury, although it involved a mixed question of law and faet;«that it was not outside of the scope of the pleadings. We 'further hold that the decree sustaining the cross-bill of Ben D. Ewin, Sr., was not based solely upon the cancellation of the note during the lifetime of the testatrix, but was also based upon the finding upon this issue No. 4, which fairly presented the question whether or not it was the intention of the testatrix to release the debt in making her bequest of $7,000 to her said brother. The executor contends that evidence of extrinsic facts and circumstances was inadmissible to show that Mrs. Allen intended by her bequest to cancel the debt and in addition to give to her brother the sum of $7,000. A rule is invoked that where such intent does not clearly appear on the face of the will the mere bequest does not operate to release or extinguish the debt. This is a general rule; but the fundamental and controlling rule to which all others are subordinate, with a few exceptions, in the construction of wills, is to ascertain the intention of the testator, and, having ascertained that intention, whatever it may be, if it is lawful it should be carried out.

In Adkisson v. Adkisson, 4 Tenn. Civ. App., 453, it is said (per Mr. Justice Wilson) :

“While this intention of the testator is to be gathered from what is found within the four corners, within the lids of the instrument; that is, from the particular words used in the will, their context, and the general scope and purpose of the instrument. Hadley v. Hadley, 100 Tenn., 446 (45 S. W., 342); East v. Burns, 104 Tenn., 169-183 (56 S. W., 830); Dixon v. Cooper, 88 Tenn., 177 (12 S. W., 445); Williams v. Williams, 10 Yerg., 20, 21; Lynch v. Burts, 1 Heisk., 600-604; Armstrong v. Armstrong, 4 Baxt., 357-359, yet this rule does not preclude courts from hearing parol testimony that will enable them to put themselves as near as possible in the situation of the makers of the wills whose language is to be interpreted; such, for instance, as shows the state of facts under which the wills were made, the situation of the properties of the testators, the members of their families and other' relevant or cognate facts. Pritchard on Wills, section 499; Schouler on Wills, section 466; Gannaway v. Tarpley, 1 Cold., 572; Bunch v. Hardy, 3 Lea, 544-547; Ballentine v. Wright, 7 Lea, 26-30; Hottell v. Browder, 13 Lea, 676-679; Dixon v. Cooper, supra; East v. Burns, supra. We need only observe, in this connection, that the testator’s intention, as disclosed by the language of his will when read in the light of the facts and circumstances surrounding him at the time of its execution, will not be set aside or disregarded by proof aliunde, showing, however, clearly a different intention on the part of the testator.”

This rule admitting parol evidence for this purpose was specified as adopted and applied in many of our cases, although there is also a general rule that parol evidence is inadmissible' to contradict, add to, or explain a will where there is no ambiguity on its face. Clark v. Clark, 2 Lea, 723; Horton v. Thompson, 3 Tenn. Ch., 581; Weatherhead v. Sewell, 9 Humph., 272; Gourley v. Thompson, 2 Sneed, 387, and other cases. A strict rule is applied in the interpretation of a will which on its face discloses the intention of the testator; that the intention that controls in the construction of a will is that intention which is expressed in the will or fairly infer-able from its terms; that the court will not give effect to an intention, though morally certain that it existed in the testator’s mind,unless it has found expression in his will. This rule was declared and applied in Fox and Wheatley v. Fox, 102 Tenn., 77, 50 S. W., 765, 767, the court saying:

“The question is not what the testator intended in his mind, but what is the meaning of his Avords and his intention, as shown by them.”

In such case the only question is what the language shows to have been the testator’s intention. Parol evidence is simply inad missible to show a different intention from that expressed in the will. This doctrine was declared in the recent case of Martin v. Hale, 167 Tenn., 438, 71 S. W. (2d), 211, in the opinion by Mr. Justice Chambliss. It may be harmonized with the admission of extrinsic evidence in other cases upon the theory that in those cases the intention as to the question involved is not shown in the will. It cannot be doubted that the will of Mrs. Allen shows on its faee a clear intention to give to Mr. Ewin the sum of $7,000. The question whether or not she intended to release the debt by canceling the note arises from extrinsic evidence produced by the executor, who sued by cross-bill to recover upon the note. It insists that an obligation upon the note presents a claim apart from the bequest, although the bequest should be given effect; in other words that the legacy should be subjected to the payment of the note. The will does not express affirmatively any intention other than the mere intention to make the bequest of the sum therein named. We have, therefore, a legacy of money and a note for an amount approximately equal thereto. May we consider the extrinsic evidence, together with the will itself, in order to determine the true intention?

In Rickets v. Livingston, 2 Johns. Cas. (N. Y.), 97, 1 Am. Dec., 158, it was said by Judge Kent:

“The general disposition of the equity courts is in favour of the efficacy and absolute nature of legacies. Á legacy naturally implies bounty or benevolence and it is, prima facie, to be presumed absolute. Mosely, 300; 3 Atkyns, 97; 1 Brown’s Civil Law, 304. The courts, accordingly, lean against considering a legacy as payment, even of a debt, for as far as a legacy is applied to pay a debt, so far it is no legacy. It is making it a payment, instead of a gift. 1 P. Wms. 299, 408; 1 Salk., 155; 3 Woodd., 538; 1 Bro. C. C., 129; '2 Fonb., 320.”

In Baily’s Estate, 153 Pa., 402, 26 A., 23, involving a béquest of an amount much less than the legatee’s debt, the will being silent on the subject of intent as to release of the debt, it was said:

‘ ‘ The intention referred to may be gathered from the will itself; and, in the absence of any clearly-expressed or implied intention in the will, evidence thereof dehors the instrument may be re sorted to.’’

In Woodruff v. Migeon, 46 Conn., 236, it was held that a knowledge of the relation which existed between the testator and the legatee may enable the court to see more clearly what was in the mind of the testator at the time the will was made.

This rule admitting parol evidence is applied in doubtful cases, because of the extreme necessity of ascertaining the real intention of the testator. See, also, Ensley v. Ensley, 105 Tenn., 107, 58 S. W., 288; Young v. Cavitt, 7 Heisk., 24; Rodgers v. Rodgers, 6 Heisk., 496; Chaffin v. Gullet, 2 Sneed, 275; Henderson v. Vaulx, 10 Yerg., 34; Union & Planters Bank v. Alsobrook, 6 Tenn. App., 264. We are of the opinion that as to the bequest to Ben D. Ewin, Sr., whether or not it was intended as a gift in addition to the cancellation of the debt, a doubtful question at least is presented. If Mrs. Allen did not intend to release the debt, why woirld she give with one hand and take back with the other? Why would she adopt the device of giving to the debtor the amount of the debt, with the intention that the legacy would be paid and then handed back to pay the debt? Why did she not simply bequeath to her brother a cancellation of the debt without specifying a gift to him in money?

This very question was deemed very material in Holmes v. Holmes, Administrator, 36 Vt., 525, involving a devise to a daughter of the testator whose debt was evidenced by a note acknowledged by the testator at the time of his death. The devise was of a farm without mentioning the debt. The' court admitted parol evidence to show the relation which the testator sustained to his debtor, and the circumstances surrounding him. The court said:

“But if the testator did not intend this devise to have the effect to release the orator’s debt, and intended to preserve it to be collected by his representatives, how came he to make the devise to the orator at all? All the right he had against the orator, was to have payment of his debt, and when that was done, the farm belonged to the orator. It may well be inferred from the fact that he took a conveyance of the orator’s farm to secure this large debt, and had held the title for so many years, that this farm constituted the main property of the orator, and his only means for paying so large a sum. Would it be natural or reasonable that the testator should surrender his security, which was ample and safe, and leave his representatives to getting payment out of the land by attachment, and other legal process?”

Mr. Ewin had no property. He was insolvent and bankrupt. Why Mrs. Allen would bequeath to him the amount of the debt and then just expect her executor to withhold it for payment when she could more simply bequeath to him a cancellation of the debt, is at least very difficult to understand. In this situation parol evidence is surely admissible to explain the intention in the light of the facts and circumstances. The case therefore comes within the rule that a legal presumption of intention not to discharge a debt, which arises from a naked legacy being given to the debtor, may be rebutted by extrinsic proof. 28 R. C. L., 299; Woerner on the American Law of Administration, vol. 3, p. 1528.

In Eden v. Smyth, 5 Ves., 355, this doctrine was announced by Lord Loughborough, the Lord Chancellor, involving this very question of release of a debt under a legacy to the debtor. It was beld that as the will manifestly did not express clearly the whole intention of the testator, parol evidence should be received to show the intention. This rule was adopted in Zeigler v. Eckert, 6 Pa., 13, 47 Am. Dec., 428. See also, Daugherty v. Rogers, 119 Ind., 254, 20 N. E., 779, 3 L. R. A., 847, and notes thereto. In Zeigler v. Eckert, supra, it was held that a legal presumption of intention not to discharge a debt, which arises from a naked legacy being given to the debtor, may be rebutted by extrinsic proof, and as this presumption may be removed by parol evidence, it may be restored by the same kind of evidence; therefore, parol proof of the testator’s intention to release the debt constitutes a good defense to an action brought by the executor to recover it. The court said that it is certain that the chancellor would not admit parol evidence to control the will;,nor do we here look to such evidence to control the will, but merely to interpret it in the light of extrinsic facts which tend to show the intention. That case was decided upon evidence of declarations made by the testator. We do not look in this case to declarations shown to have been made by Mrs. Allen, for these are inadmissible under the rule declared in Weatherhead v. Sewell, supra, and Gourley v. Thompson, supra, and other cases, but we look to the circumstances disclosed by evidence which we deem competent.

The evidence shows that Mrs. Allen had very great fondness for her brother; that he was bankrupt and unfortunate and she was abundantly able to give him help. It shows a great consideration of his circumstances on her part. She was as devoted to him as if he were her son. She made bequests of $15,000 each to other persons of whom she was no more fond than she was of her brother. The amount of the debt and the amount of the legacy aggregate a sum nearly equal to each of these particular bequests. She made no effort to collect the debt. She had no reason to think that her brother could ever pay it. We are of the opinion that the jury could conclude reasonably from this evidence and from the will that it was the intention of Mrs. Allen in making the bequest to her brother of only $7,000, when others no nearer in her affections were given $15,000 each, to release and cancel the debt, treating it as an advancement already made to her brother. It is true that the will was executed in 1923 and Mrs. Allen did not pay the debt for her brother and take the note in question until 1926; but at the time of the execution of the will she was a surety or indorser for her brother in the amount of the note which she afterward took, and she knew that she was going to have to pay those debts; therefore we deem it immaterial that the note was not executed by Ben D. Ewen, Sr., for several years after the will was executed. The jury could reasonably infer that she had in mind at the time of the execution of the will the fact that she would have to pay those debts.