Cox. v. George

WIDDSON, C. J. (after stating the facts as above.) [1] It conclusively appeared, and the court'so found, that the children of the first marriage as the heirs of their mother owned a one-half undivided interest in the “home place,” and that their father at the time he made the will knew they so owned an ihterest in the land. It is apparent, if the language of the first *327 clause in the will should be construed literally and without reference to that in the other clause, that the testator undertook to dispose of the “home place” as an entirety, and not the undivided interest he owned in it. If, however, the clause in the will is construed with reference to the language in the other clause, and the fact that the testator knew that he owned only an undivided half of the home place, such an intent on his part would not be at all clear; for the language, “the remainder of my property,” used in the other clause in the will, would then indicate that 'his intention was to dispose of his own property only. [2] If therefore the face of the will furnished no other evidence showing the intention of the testator, the presumption the law would indulge, that he intended to dispose of his own property alone, probably would require us to hold that his intention was to dispose of only his half interest in the “home place,” for, as said by Mr. Underhill: “The courts, in construing a general disposition of property in which the testator owns only a partial interest, will favor a construction which will dispose only of the actual interest of the testator.” 2 Underhill on Wills, § 730. But the language of the will as a whole, construed with reference to the circumstances surrounding the testator, furnishes other evidence, to which the law gives weight, showing his intention to have been to dispose only of his part of the “home place.” It appears therefrom that he did not intend to disinherit any of his children, but, on the contrary, intended to make provision for each of them. It further appears, if the will should be construed as determined by the trial court, that it would operate to disinherit three (S. A. Bridge, Alice L. Scott, and Mary A. Cox) of the children of that marriage; for, if the will is so construed, nothing was devised to them that they did not already own. “Whore any ambiguity exists in a will,” said the author of the article on “Wills” in 40 Cyc. 1412, “unless there is a manifest intention to the contrary, a presumption that the testator intended that his property should go in accordance with the laws of descent and distribution will be applied as an aid in construing the will. Hence such a construction should be given the will as favors heirs at law or next of kin, in preference to disinheritance.” And see, also, McIlvaine v. Robson (Ky.) 171 S. W. 413; Morrison v. Tyler, 266 Ill. 308, 107 N. E. 602; Crosson v. Dwyer, 9 Tex. Civ. App. 482, 30 S. W. 932. When the presumptions which, as we have seen, the law in a proper case indulges, are kept in mind, we think it is reasonably clear from the language of the will considered as a whole, and with reference to the circumstances surrounding the testator, that he did not intend to dispose of the “home place” as an entirety, but only of his half thereof. It is more reasonable and more in harmony with rules of law, we think, to say that he did not intend to do what he had no right to do, to wit, to dispose of property he did not own, than to say that he intended to do what he plainly declared he did not intend to do, to wit, disinherit some of his children. It follows we are of opinion the trial court erred when he construed the will as he did. Therefore the judgment will be reversed, and judgment will be here rendered construing the will as operating to pass to the children and heirs of children of the first marriage a one-fourth undivided interest in the “home place,” and to children named of the second marriage a one-fourth undivided interest therein, charged with the payment by them to the heirs of Edna M. Blair, deceased, of the sum of $300 when said “home place,” is sold or divided. [3] The suit, we think, was necessary to determine the interest in the “home place” which passed to the devisees named in the first clause in the will, and was for the benefit of all the parties alike. The costs therefore will be adjudged against all of them, each to pay a part thereof proportioned to the interest he or she takes in that property. 40 Cyc. p. 1864; 1 Underhill on Wills, § 462. Footnotes [1] <gsoFor other casos see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes