Kelly v. Richardson

100 Ala. 584

• Court: Supreme Court of Alabama
• Decided: November 15, 1892
• Status: Published

Opinion

McCLELLAN, J.

J. C. Richardson, as executor of the last will and testament of J. T. Perry, deceased, filed his bill in the Chancery Court of Butler county against Sarah E. Kelly, J. M. Carroll and others, the devisees and legatees thereunder, praying that the administration of the decedent’s estate be removed from the Probate into the Chan(fery Court, and there managed, administered and settled; that the will of the deceased be interpreted and construed by the Chancery Court, and the rights, interests and duties of the executor, devisees and legatees thereunder be declared; that the duties and liabilities of the executor in respect of a certain contract made by and between said Carroll and said Kelly be determined; that a certain “pretended deed,” signed by the testator shortly before his death and found in the hands of Carroll, purporting to convey a lot or parcel of land to said Kelley, be annulled and can-celled, or held to be a part of said will, &c. The bill also contained the general prayer for relief. There is some suggestion in the bill, made by a reference to the averments of another bill in a different case where the charge was directly advanced, that Carroll had wrongfully and fraudulently gotten possession of a large sum of money which Perry had at the time of his death; and upon this suggestion the present bill sought a recovery from Carroll of this alleged fund. Evidence was adduced in that connection, but no decree was entered on this part of the case, and no question connected with it is now presented for our consideration. The fact that some question is raised as to the validity of a codicil to the will is also stated in the bill, and the Chancery Court is asked to determine whether the codicil is valid or not; but this inquiry is not pursued beyond this suggestion and prayer, the will and codicil were duly probated and established in the Probate Court, no decree on the validity of either was passed by the Chancery Court, but that court treated and considered the will and codicil together as constituting the last testament of the deceased, and so we will consider them.

No objection is here urged to the decree of the chancellor in so far as it removed the administration of the estate from the Probate into the Chancery Court; the propriety of and necessity for that action appear to have been conceded by all parties on the hearing.

The questions of chief importance raised by this record bear upon the construction of the testator’s will and codicil, and that these may be the more clearly presented, those instruments, omitting their formal parts, are here copied as follows: “First, my will is that all my just debts and funeral expenses, including a monument over my grave, be paid out of my estate as soon after my death as convenient. Second, after paying all my just debts and funeral expenses as heretofore described, I give, devise and bequeath to my beloved sister Mahala I. Rothenhoffer all my personal property except my piano, which I give, devise and bequeath to my niece Henrietta Dohrmeier, and my parlor set of furniture including carpet and parlor pictures of every kind, that is in my parlors to my niece Bessie Dohrmeier. Third, I give, devise and bequeath five hundred dollars in cash to each of my sisters, Mahala I. Rothenhoffer, Martha I. Fulmore, and my sister-in law Georgiana Y. Carroll, which shall be paid over to them by my executors within twelve months after my death or sooner if practicable.

REAL ESTATE.

I give, devise and bequeath to my nephew, J. M. Carroll, my two brick stores and lots on the corner of Commerce and Bolling streets, each fronting 25 feet on Commerce street and running back 125 feet; but if he should die without issue, before the reversion or remainder shall come into his possession, then I give, devise and bequeath the same to my niece, Fannie Bell Dohrmeier, her heirs and assigns, forever. Fourth. I give, devise and bequeath to my niece, Fannie Bell Dohrmeier my hotel and lot known as the “Perry House” on the north side of Commerce street, fronting about 50 feet on Commerce street and running back 100 feet. Also, I give, devise and bequeath to my niece, Fannie Bell Dohrmeier, my two one-story brick stores and lots, west and adjoining the “Perry Hotel” and the L. & N. R. R. right of way. Fifth. I give, devise and bequeath to my niece, Henrietta'Dohrmeier, my two brick store-houses and lots on the south side of Commerce street, described as follows, i. e.: The third and fourth stores from the corner of Commerce and Bolling streets and immediately east and adjoining the two stores that I have given to J. M. Carroll, fronting 20 feet on Commerce street and running back 125 feet each, one now occupied by Prof. J. P. Steele and the other by H. Potter. Sixth. I give, devise and bequeath to my niece, Bessie Dohrmeier, my two two-story brick stores on the south side of Commerce street, known as the Sol. Erlick dry goods store and Lichten & Co. drug stores, each fronting 20 feet on Commerce street and running back 100 feet, immediately east and adjoining the two stores that I have given to Henrietta Dohrmeier, they being the fifth and sixth stores from the corner of Commerce and Bolling streets. Seventh. I give, devise and bequeath to my niece, Eva Dohrmeier, my two one-story brick store-houses and lots on the north side of Commerce street, fronting 45 feet on Commerce street and running back 100 feet, immediately east and adjoining the hotel known as the “Perry House” and now occupied by J. C. Bryan as a billiard and drinking saloon. Eighth. I give, devise and bequeath to my nephew, Herman Perry Dohrmeier, all other property which I may die seized and possessed of or that I may be entitled to at the time of my death. And I hereby appoint my nephew, J. M. Carroll, Edward Crenshaw and J. C. Bichardson to be the executors of this my last will and testament, and I hereby authorize them or the survivors of them to do all things necessary to carry out the terms of this will, and to avoid if possible the necessity of going into any of the courts to settle up this will. It is my wish, too, in case of disagreement between any of the parties to this will, that the same shall be settled by arbitration instead of going into chancery or any other court with it. The said executors, or such of them as act, shall give bond and security in the sum of ten thousand dollars for the faithful performance in carring out the terms and provisons of this will, said bond to be taken and approved by the probate judge of this county. To all of which I set my hand and seal this the 10th day of February, 1887.”

(The Codicil.) “Codicil: Additional to page 1 from second clause. Second: After paying all my just debts and funeral expenses, as heretofore described, I give, devise and bequeath to my beloved sister, Mahala J. Bothenhofer, all my personal property excepting stock of merchandise, books, accounts, notes, store fixtures and every thing belonging in said store now occupied by me on corner of Commerce and Bolling streets, to my nephew, J. M. Carroll, who will assume all the liabilities of the store and continue the business as heretofore; and he would [will ?] provide for the welfare of my beloved sister, Elizabeth Kelley, and my sister-in-law, Georgiana Y. Carroll, as long as they live and will accept.”

It is clear, we think, that this codicil was intended, not as an addendum merely to the second clause of the will, but as a revocation and expurgation of that clause in its entirety and the substitution of the new provisions in lieu of it. The codicil is stated to be “additional,” not to clause second, but “to page 1 from [or commencing with] second clause.” With this identification of the point in the original paper where the codicil is to be inserted in the reading of both as one instrument, the body of the addition to page 1 is denominated “Second.” There being only one clause in the codicil, this word could have been used only for the purpose of referring it to its proper place as clause second in the original will; and this idea finds further support in the fact that the language of the codicil down to the exception stated therein is precisely that of the original clause, down to the exception. The original clause, in other words, bequeathed all of the testator’s personalty to Mrs. Rothenhofer, with certain exceptions in specie, to Henrietta and Bessie Dohrmeier, respectively. The codicil in identical terms bequeathed all of the personalty to Mrs. Rothenhofer, with certain specific and entirely different exceptions to J. M. Carroll. Each of the provisions in terms covers all of the testator’s personal estate and disposes of it. It may well be that the testator, having determined upon the provision for Carroll, and seeing that thereby the value of his bequest to Mrs. Rothenhofer would be greatly lessened, had in mind to maintain the quantum of her legacy to the extent that could be done by striking out .the exception originally embraced in the clause “second” and revoking the legacies thereunder given to the Dohrmeiers. Certain it is that these clauses cover the same field and to the same extent the personalty and all the personalty of the estate. Certain it is also that they are wholly inconsistent with each other as respects their several exceptions from the general bequests of all personalty and their specific legacies out of and embracing in each instance all the property excepted from the general bequest to Mrs. Rothenhofer. And, of course, the codicil must be upheld, the effect being a revocation of the specific legacies to Henrietta and Bessie Dohrmeier. The chancellor erred in his decree upon this matter.

There is another instrument brought to light in this case which, in our opinion, must, if and when probated as it may be, operate as a codicil to the will of J. T. Perry. We refer to the paper executed by the testator on June 21st, 1887, which is in the following language :

“State of Alabama, ) Know all men by these presents,

Butler County. (" That I, John T. Perry, of the County and State aforesaid, for and in consideration of kind and valuable services rendered to me by Elizabeth Kelly of the county and State aforesaid, and also for the further consideration of $5.00 to me in hand paid, the receipt of which is hereby acknowledged, have given, granted, bargained and sold, and by these presents do give, grant, bargain, sell and convey unto the said Elizabeth Kelly the following described, lot or parcel of land, viz. : One house and .lot known as the Conley place, bounded on North by Commerce street, on the South by Geo. W. Bryan’s lot, on the East by an alley; on the West by Mrs. Botbenhofer’s lot containing one-half acre more or less; situated in the city of Greenville, county and State aforesaid, together with all and singular the hereditaments and appurtenances thereunto belonging to have and to hold the aforegranted premises unto the said Elizabeth Kelly, her heirs and assigns, as against myself, my heirs and assigns, and against all persons claiming or to claim the same by or through me in any manner whatever; but reserving unto myself the use, occupation and enjoyment and control of the same for and during the term of my natural life and I am to retain the possession of this conveyance during the term of my natural life ; then this conveyance to be delivered to the said Elizabeth Kelly. In witness whereof I hereunto set my hand and seal, this 21st day of June, 1887.

J. T. Perry (Seal.)

In presence )

S. J. Bolling, [

J. M. Carroll.” )

It is most clear that this instrument is inoperative as a deed. It conveyed no estate in possession or in title during the life of Perry. He was not only to retain “the use occupation, enjoyment and control” of the land for the term of his natural life, but by the express terms of the paper there was to and could be no delivery of the instrument, in escrow or otherwise, until after his death, and, in legal contemplation, posthumous delivery is no delivery at all. Richardson v. Woodstock Iron Co., 90 Ala. 266. On this state of case, the instrument is void as a deed but if, as seems probable, it was executed with the formalities requisite to a will, it may when proved as a codicil to the will, operate as a testamentary disposition of the house and lot described in it to Mrs. Kelley.—Crocker v. Smith, 94 Ala. 295; Trawick v. Davis, 85 Ala. 342; Kyle v. Perdue, 87 Ala. 423.

Putting the codicil first considered in the stead of the second clause of the will and adding to the will this paper of June 21, 1887, as a codicil thereto, which we will assume for the purpose of this opinion has been probated as such, it is now to be considered what is the character of its several bequests and devises in respect of the first being specific, demonstrative or general, and of the second—devises—^-being specific or general, with a view to determining in what order they shall be abated or adeemed through contribution to the payment of the debts of the estate and the expenses of its administration. The principles of law in this connection are plain and familiar for the most part, and, in the main, of easy application to this case. “A specific legacy is a bequest of a particular article or specific part of the testator’s estate which is so described and distinguished from all other articles or parts of the same as to be capable of being identified.” “A demonstrative legacy is a bequest of money or other fungible goods, charged upon a particular fund in such way as not to amount to a gift of the corpus of the fund, or to evince an intention to relieve the general estate from liability in case the fund fail, and so described as to be undistingiushable from other things of the same kind.” “A general legacy is a bequest chargeable upon the general estate, and not so given as to be distinguishable from other parts of the estate of the same kind,” or, as otherwise defined “a general legacy is one of quantity merely, and includes all legacies not embraced within the definitions of specific and demonstrative legacies.” 13 Am. & Eng. Encyc. of Law pp. 10 et seq. and notes; 1 Brick. Dig. pp. 594-5 § 127 et seq.; Myer’s Exr’s v. Myers, 33 Ala. 85; Harper v. Bibb, 47 Ala, 547; Maybury et al. v. Grady et al.; 67 Ala. 147.

A bequest of all the testator’s personal estate is a general bequest, nor is its character in this regard changed by the fact that a specific part is excepted out of the general bequest and given to another. 13 Am. & Eng. Encyc. of Law pp. 23-5 notes; In re Ovey L. R. 20 Ch. D. 676.

Under these definitions, the bequest of personalty in gross to Mahala J. Eothenhofer and the pecuniary bequests to Mesdames Kelley, Carroll and Eulmore are general legaacies, and the bequest to J. M. Carroll of certain merchandise and other property pertaining and belonging to the mercantile business carried on by the testator in his life time is a specific legacy. No demonstrative legacy-is given by the will.

As to the character of the devises contained in the will. At common law all devises of land, whether given by particular description or residuary clauses, were specific. The soundness of this doctrine, its logical correctness, is manifest when reference is had to that rule of the common law by which wills were held to speak as of the date of their execution and to embrace only such property as then belonged to the testator and was within the terms of the testament. Under that rule, as has been well said, “a devise of lands operated in the nature of an appointment upon the land held by the testator at the time of its execution, hence whether the land devised was described specifically or only by way of residue, for practical purposes, it was equally well ascertained,” since the residue then held by the testator was as capable of identification and was already indeed as fully identified in his mind and intention as the part segregated therefrom by particular description, he being held to know what property he is seized of. And therefore the doctrine we have stated, that even residuary devises are specific because it is to be assumed the testator had the residue of the land then held by him in his mind and to have intended it to go to the residuary devisee as specifically as he had intended the lands particularly described to go to other devisees. Some modification of this, doctrine has been admitted in American courts in view of statutory provisions which have the effect of making wills speak from the death of the testator instead of from their execution. Our statute on the subject is the following: “Every devise made by a testator, in express terms, of all his real estate, or in any other terms denoting his intention to devise all his real property must be construed to pass all the real estate he was entitled to devise at the time of his death.” Code § 1948. Considering that testators could not have had property acquired after the execution of their wills in their minds at that time, and that it is only by force of statute and wholly apart from the testator’s intent that such property passes at all, and hence that they could not and did not specifically intend that residuary devisees should take such property, the tendency of American decisions has been, though the rule is different under similar statutory provisions in England, to hold that no devise of after acquired real estate is specific unless the land is described with sufficient particularity to enable the devisee to identify it.—Farnum v. Bascom, 122 Mass. 282; In re Woodworth’s Estate, 31 Cal. 595; 13 Am. & Eng. Ency. of Law p. 27, note. This modification has never been considered in Alabama. No case has arisen involving the character of a devise of after acquired land in this respect, but, while the general doctrine that devises are specific has been adjudged by this court, nothing that has been said is opposed to the limitation of it to property held by the testator at the time of executing the will and property the acquisition of which was then in contemplation and which is so described in the will as to enable the devisee to identify it.—Maybury et al. v. Grady et al. 67 Ala. 147, 153, citing Wallace v. Wallace, 23 N. H. 149, and 2 L’d’g. Cas. in Eq. Pl. 1. pp. 323 et seq. There being nothing in our own adjudications to the contrary, and conceiving the modification to be sound in principle, we adopt it, and hold in so far as wills pass real property acquired after execution the devises are general and not specific unless such after acquired property is so described as to admit of its identification by the devisees.—2 Wagner Administrations p. 967; 3 Redf. on Wills, 367, n. (36); 4 Kent. Com. 541 n. (1).

Applying the foregoing principles to the will before us the result is to declare that each of the devises it contains including the residuary devise to Herman Perry Dohrmeier and, of course, the devise by codicil to Mrs. Kelly, is a specific devise, with this possible qualification in respect of said residuary devise: If any part of the land covered thereby was acquired by the testator after the execution of the will, to the extent of such land and in respect of it only the devise is general, such after acquired land, if any there was, not being described in the instrument.

Coming now to consider the order in which the legacies and devises of this will are to be abated or acleemed by contribution to the deists of the estate and expenses of its administration, it is first to be observed that by the special terms of the codicil the indebtedness incident to the testator’s mercantile business is charged upon the specific legacy of the stock of goods, etc., etc., bequeathed to J. M. Carroll. If this property suffices to pay this indebtedness with a balance of property remaining, the question is whether such balance is subject to the general indebtedness of the estate along with, other legacies of its class. We think it would be. This property in the first place was subject to the general debts of the estate, including the liabilities incurred in the mercantile business. And the general rule is that expressly subjecting property “to certain charges to which it was before liable does not exempt it from its primary liability for other debts not so expressly imposed upon it, upon the principle of expressio vnius est exclusio alterius.” The contrary intent of the testator must be plainly manifested before a different conclusion is authorized.—Brydyes v. Phillips, 6 Ves. 567; Davies v. Ashford, 15 Simons, 42. We find no expression or clear indices of any other intent on the part of the testator than a purpose to specially charge the legacy to Carroll with the mercantile debts: there is indeed no intimation and scarcely room for persuasive inference that he had any purpose to exempt this property at all from the burdens of his estate further than the law implies from the specific terms in which th'e legacy is given, the effect of which has relation solely to the order in which it may he subjected to general debts. And we accordingly hold that if the store debts are paid by Carrol] or out of this property he holds the remnant of it subject to the other debts and to the expenses of administration as a special legacy is subject thereto. On the other hand, if this property is exhausted without full payment of the mercantile indebtedness the unpaid balance of course is to be paid like other debts out of the general property of the estate.

It is the policy of our laws that both real and personal property are equally liable for the debts of decedent’s, and that realty devised and personalty bequeathed shall, where the devise and legacy are of the same character, abate ratably when there is a failure of assets undisposed of by the will to pay debts. It is in keeping with this policy that the rule by which specific legacies and specific devises are abated ratably by the necessities of contributions to the debts of the estate has come to be established. It follows logically from this policy and this rule in respect to specific dispositions of realty and personalty respectively that general devises shall contribute ratably with general legacies to debts and expenses of administration, and we so hold. That specific devises and specific legacies abate pro rata when there is necessity for either to contribute to debts is a proposition sustained by the weight of authority and reason and which has been expressly announced by this court. 13 Amer. & Eng. Encyc. of Law, pp. 130 et seq, and notes; 2 L’d’g. Cas. in Eq. Pl. 1, p. 325 et seq; Maybury et al. v. Grady et al., 67 Ala. 147; 1 Roper on Legacies, 358.

As we have seen, there is no residuary bequest in this will. There are general legacies—of “all my personal property,” with a certain exception, to Mrs. Rothenhoffer, and five hundred dollars in money to Mesdames Fulmore, Carroll and Nelly severally. There may also be, as we have pointed out, a general devise of after acquired land to Herman Perry Dohrmeier. Beyond these, the remaining legacy —that to J. M. Carroll—and all of the devises are specific. The order of abatement is this: The personalty bequeathed to Mrs. Rothenhoffer, the pecuniary legacies of five hundred dollars each and the land acquired after the execution of the will and embraced in the residuary devise to Herman Dohrmeier, if any such land is embraced therein, must first, after exhausting assets undisposed of by the will, be taken and made to contribute ratably, that is in proportion to respective values, to the liabilities of the estate. If through the full abatement of these general legacies, and this general devise, if any, the liabilities of the estate are not satisfied, the specific legacy to Carroll and each of the specific devises, of which land held at the time of executing the will and embraced in the residuary clause to Herman constitutes one, shall in like manner be made to contribute pari pas-su to the debts and expenses of administration, and, to the extent of their respective contributions, be abated.

If the paper of June 21, 1887, can not be or is not probated as a codicil to the will the land embraced in it will necessarily go in specific devise to Herman Dohrmeier and in his hands be subject with other specific devises and the specific legacies to abatement {ad valorem) by contribution to debts, &c.

The inquiry as to the source from which the pecuniary legacies are to be derived involves a question of some embarrassment. Clearly these legacies are not charged upon the realty. Clearly also it was the purpose of the testator that they should be paid, and if this intent is to be effectuated it must be out of the personalty of the estate. Yet the terms of the bequest to Mrs. Rothenhoffer are sufficiently broad, standing by themselves, to pass to her all of the personalty, including money in hand, belonging to the testator, except that covered by the bequest to Carroll; and we know of no rule of law which authorizes the payment of one general legacy by the abatement of another general legacy, or of a specific legacy. So that if the bequest to Mrs. Rothenhoffer is given the broad effect its language admits of, there is no property upon which the pecuniary legacies can be charged and no fund, even leaving debts out of view, out of which they could be paid; and the intention of the testator as to these legacies would be utterly defeated by his own will as expressed in another part of the instrument, clearly expressing also this intention. He, as we have said, is holden to a knowledge of the condition of his estate, and it is also to be conclusively presumed that he intended the benefits he has declared to each and all of the legatees named in his will. It appears that both at the time of executing the will and at the time of his death he had very considerable tangible personal property as well realty and that he also had money on deposit in bank (as at the first date) or in his private depository (as when he died.) If he bequeathed this money in part to Mrs. Rothenhoffer generally and in other part to Carroll specifically, he must have known that his beneficent purposes with respect to his sisters, Mrs. Kelly and Mrs. Eulmore, and his sister-in-law, Mrs. Carroll would be entirely thwarted. To hold that he so intended would be to convict him of the most puerile and absurd trifling with these natural objects of his bounty. A construction of the instrument which will avoid such a conclusion and leave a field for the effectuation of all his testamentary purposes, so far as the exigencies of his estate will admit of, ought to be adopted if the language he has employed is susceptible of it. We think it is and that the desired result may well be reached by construing the bequest to Mrs. Rotbenhoffer to cover and pass only that part of bis tangible personal property, not excepted to Carroll, exclusive of money in band, and by construing the bequest to Carroll not to embrace money in tbe safe in tbe store. Under all tbe circumstances these interpretations appear to us reasonable and we adopt them. This view is especially forceful in respect of tbe bequest to Carroll since it is entirely improbable that the testator, if he bad intended tbe considerable sum of money then in the store safe to pass—and tbe will in this particular was executed just before his death—would have omitted it from the enumeration of various items of property in the store and given to Carroll or have supposed he was carrying it by the general phrase “and everything belonging in said store.” We hold, therefore, that as to all money belonging to J. T. Perry at that time he died intestate, and that the pecuniary legacies were payable out of these funds, not of course as demonstrative legacies, but as undisposed of assets of the estate. And in so far as such assets together with the tangible property bequeathed generally to Mrs. Rothenhoffer were insufficient to pay the liabilities of the estate and all the general legacies in full, such legacies, that is the value of the personalty bequeathed to Mrs. Rothenhoffer and these pecuniary legacies, must abate pro rata.

In reference to the executor’s rights and duties under the contract between J. M. Carroll and Mrs. Nelly, it will suffice here to say that if at any time he has in his hands money going to Carroll out of the estate and as an incident merely of the administration he would, in our opinion, be authorized to pay it to the extent of fifteen hundred and fifty dollars to Mrs. Nelly, but he is under no duty or obligation and has no power or authority to convert the property, personal or real, specifically bequeathed or devised to Carroll, into money for the purpose of paying the latter’s contract debt to Mrs. Nelly, or into any property so bequeathed or devised to Mrs. Nelly in specie. It may not be out of place to say further in respect of the rights inter se of Mrs. Nelly and Carroll, under their agreements, that the land described in the separate paper which was supposed to be a deed from Perry to Mrs. Kelly and which we have held must operate as a codicil to Perry’s will, if it can be and is probated as such, is not within the terms of said agreements and will not pass to Carroll thereunder although thereby Mrs. Kelly released and assigned to him all her interests as devisee and legatee under the will. It was not supposed that this land constituted a devise and it was clearly not in the contemplation of the parties in entering into this contract.

"We have no fault to find with the chancellor’s decretal order as to the surrender of devises to the devisees. The case made by the petition to that end, the answer of the executor and the facts adduced justified the action taken, and the surrender or delivery of possession to the devisees is so conditioned and so limited by the terms of the order that no possible detriment can result to the estate, the creditors or the executor.

We have discussed several matters which, though involved in the case as submitted to the chancellor, were not adjudicated by him. This we have done in the hope of expediting the administration and settlement of the estate.

In several of the matters adjudged by the chancellor and presented by the appeal of J. 0. Eichardson, executor, &c., we have reached conclusions different from those declared by the decree below. On the appeal of Eichardson, therefore, that decree must be reversed, and the cause will be remanded, costs of appeal, including all cost of transcript, to be paid out of the assets of the estate.

Neither Mrs. Kelly nor J. M. Carroll, take anything by their cross-appeals, and they will respectively be taxed with the costs thereof, except cost of making transcript.

No appeal was taken by Herman Dohrmeier, and the assignments of error made by him are stricken out. The questions sought to be presented thereby, however, have been passed upon on the appeal of the executor.

Eeversed ana remanded.