Davis Trust Co. v. Elkins

Woods, Peesident : This is a suit by the surviving executors of the last will and testament of Henry G. Davis, deceased, and the trustee under paragraph XV thereof, against parties who, as descendants of Hallie D. Elkins, now deceased, one of the initial beneficiaries under said paragraph, may be interested in said bequest. Construction of said paragraph XV is sought to the end that certain disbursements thereunder may be properly made. The paragraph reads as follows: “XV. In order that my children, Hallie D. Elk-ins, Grace Davis Lee, and John T. Davis, may have an, assured income during their lives, and that some provisions may be made for those dependent upon them at their death, I give, devise and bequeath to the Davis Trust Company, One Million Five Hundred Thousand Dollars to be held by it in trust for my aforesaid children in equal proportions, that is to say, Five Hundred Thousand Dollars for each, the revenue therefrom to be paid to them semi-annually during their lives; and at the death of any of my said children, I give and bequeath his or her share in *744 equal proportions, to bis or her children, the income or revenue therefrom to be devoted to their welfare until they respectively reach the age of twenty-five years when they are to receive from my estate their share of the principal of the fund; but if any of my said children leaves no children nor child then his or her share is to go to his or her legal heirs. The intent of the foregoing provision is that a portion of my estate shall be held iñ trust so that it cannot be spent, sold or given away by my said children, and they, therefore, shall have no power to sell, transfer, or in any way dispose of their interest in said trust fund, or of the income or proceeds thereof, in advance of receiving the same. The trust fund of One Million Five Hundred Thousand Dollars for which provision is hereby made may consist of Coal and Coke Bail-way Company bonds, or other bonds, stocks or other property, at a fair valuation, as my Executors may determine, and is to be managed and its accounts kept under their direction by the Davis Trust Company. ’ ’ Doubt having arisen as to the rights, if any, of Stephen B. Elkins, III, to share in the above trust, by reason of the relationship indicated in the following chart, Henry G. Davis *745 the plaintiffs sought the advice of a court of equity as to whether the Elkins portion of said trust fund should be distributed (1) in whole to Davis Elkins and Katherine Elkins Hitt, the only surviving children of Hallie D. Elkins; (2) to Davis Elkins, Katherine Elkins Hitt and Stephen B. Elkins, III, or (3) five ways, that is, one-fifth to Davis Elkins, one-fifth to Katherine Elkins Hitt, one-fifth to the heirs or beneficiaries under the will of Blaine Elkins (father of Stephen B. Elkins, III), one-fifth to the heirs or beneficiaries under the will of Richard Elkins, and one-fifth to the heirs and beneficiaries under the will of Stephen B. Elkins, Jr. The following salient facts may be stated before we proceed to a discussion of the foregoing questions. Henry G. Davis executed his will on August 24, 1915, and he died in March the following year. His will was probated on March 15-, 1916. At the time of the execution of the will he had three living children, Hallie D. Elkins, Grace Davis Lee and John T. Davis. Mrs. Elkins had then living five children, all of Avhom were more than twenty-five years of age. Mrs. Lee had four living children, all of whom were under twenty-five years of age. Mrs. Lee has since died and her part of the estate has been duly distributed. John T. Davis is still living and his interests are not here involved. Hallie D. Elkins died in March, 1933, and the construction herein requested pertains only to the trust estate left to her by her father. As stated, at the time of the death of her father, and of the execution of Ms will, she had living five children, Davis, Stephen B., Jr., Richard, Blaine and Katherine Elkins Hitt. Prior to Mrs. Elkins’ death, three of her sons had died. Richard and Stephen B., Jr., died without issue and Blaine left one son, the said Stephen B. Elkins, III, now seventeen years of age. All three left wills, Stephen B. Elkins, Jr., leaving all his property to Davis Elkins, and Richard leaving his property to his three brothers and sister. Blaine left his property to his wife and son. The will under consideration was admittedly drawn by an able attorney. The testator was a man of education and intelligence. He had long and varied experience in business affairs. He served his state and nation in a political office of high rank. Inasmuch as each ease must be governed by *746 its own particular facts and circumstances, but little aid can be derived in the construction of wills from adjudged cases. Cole v. Cole, 79 Va. 251. It has, therefore, been well said, that it may be doubted if any other source of enlightenment in the construction of a will is of much assistance, than the application of natural reason to the language of the instrument under the light which may be thrown upon the intent of the testator by language used by him. We realize that it is the duty of the court to construe the will which the testator has made and not to speculate as to his intention or to make a will for him. Harris v. Neal, 61 W. Va. 1, 55 S. E. 740. In the interpretation of a will the court will adopt such a construction as will give effect to every part of an instrument and thus avoid declaring any provisions which it may contain to be repugnant to others, provided some effect can be given not inconsistent with the general intent gathered from the whole will. Hooe v. Hooe, 13 Graft. 245. Courts are never bound to give a strict and literal interpretation to the words used, and by adhering* to the latter, defeat the manifest object and design of the testator. Jones v. Brown, 151 Va. 622, 144 S. E. 620. It is not the policy of the law to seek grounds for avoiding devises and bequests, but rather to deal with both so as to uphold and enforce them if it can be done consistently with the rules of the law. McCoy v. Ward, 93 W. Va. 338, 116 S. E. 526. Chief Justice Marshall, in Finley v. King, 3 Pet. 346, said: ‘ ‘ The intent of the testator is the cardinal rule in the construction of wills, and, if that intent can be clearly conceived and is not contrary to some positive rule of law, it must prevail.” So, “the sole purpose of the court in construing a will is to ascertain the intention of the testator as the same, appears from a full and complete consideration of the entire will. ’ ’ I Page on Wills (2d Ed.) 1366. Therefore, intention is the life of a will, and when clear and violates no rule of law, it must govern with absolute sway. Cresap v. Cresap, 34 W. Va. 310, 12 S. E. 527. Or, it is sometimes said, the testator’s intention must be ascertained from the four corners of the will. The testator here had a vast estate. There were many demands upon his bounty. Being a man interested in his fellows he had contributed to the support of numerous institu *747 tions of his country. He made contributions to them by his will also. His demands were many. His desires were large. They may be said to have been patriarchal in design. He loved his family and its various divisions. The learned chancellor below held that the said trust fund should be distributed in whole to Davis Elkins and Katherine Elkins Hitt, as the sole surviving children of Hallie D. Elkins. It is from this holding that the appeal comes to this Court. Only one issue arises upon this appeal. Did the lower court err in excluding the infant appellant from the class described as “children” in paragraph XV, and eliminating him from equal participation? It seems that the testator had first in mind his three living children in the making of his will, that they “may have an assured income during their lives”. But what do we determine the words following to mean: ‘ ‘ and that some provision may be made for those depending upon them at their death”? Of course, it is fundamental that the term “■ children” in its primary sense and in the absence of qualifying words and provisions means issue of the first degree. On the other hand, the books are full of cases holding that the meaning of an isolated word may be modified or broadened, such as the term “children” to include grandchildren, if it is shown from the will as a whole that the testator so intended. Earl of Tyrone v. Marquis of Waterford, I De Gex, Fisher & Jones 637; IV Kent’s Commentaries, (13th Ed.), 419; Prowit v. Rodman, 37 N. Y. 42; Bowker v. Bowker, 148 Mass. 198, 19 N. E. 213; Dunn v. Cory, 56 N. J. Eq. 507, 39 Atl. 368; Wilson v. Rand, 215 Ala. 159, 110 So. 3; Schouler on Wills, (5th Ed.) 670; I Page on Wills (2nd Ed.), 1505. We must resort to the context of the will of Henry G. Davis to ascertain whether there are any expressions which support the broad construction of the word ‘ ‘ children ’ ’ and the theory that such term includes grandchildren. At the opening words and first four lines of the paragraph under consideration, that paragraph XV which states the purpose of the trust bequest, we find: “In order that my children Hallie D. Elkins, Grace Davis Lee and John T. Davis, may have an assured income during their lives, and that some provision may be made for those dependent upon them at their death.” At the time the will was written the five children *748 of Hallie D. Elkins were over twenty-five years of age, each of them married, and their father, Stephen B. Elkins, was dead, leaving a large estate to them. It would be going far to say that they were regarded as dependents upon the bounty of their mother. Could the testator have intended these five adult children only, and no other persons whatever, by expressly making provision for those who might be dependent on Mrs. Elkins at her death? By using the words “those dependent upon” Hallie D. Elkins, the testator in all likelihood, knowing that his daughter would probably have no more children and that those of her children in life were over twenty-five years of age and in the nature of things not dependent, contemplated the application of those words to the child of a deceased child of Mrs. Elkins. The remainder of bequest XY which gave the children of his own children only the income “until they respectively reach the age of twenty-five years,” the testator must have had in mind the family of Hallie D. Elkins as well as the families of his other children, and that he well knew Mrs. Elkins’ children were past the age of twenty-five years. If we make the application we seek, it would amount to an absurdity to believe that this part of the bequest would apply to her children in the literal and narrow sense and not to the grandchildren as well. The provision, “but if any of my said children leaves no children nor child then his or her share is to go to his or her legal heirs ’ ’, demonstrates that the testator had in mind “grandchildren” of his daughter Hallie D. Elkins, and desired to provide for them, for certainly the grandchildren, if any, would be the sole legal heirs in the event named. If the children of Mrs. Elkins do not receive the principal of the fund and have no power to dispose of it in advance of receiving the same, who would be protected by such last-quoted provision if it were not imposed to protect and “make provisions” for the defendant infant children of Mrs. Elkins ’ children, namely her grandchildren ? Another act of the testator which has significance is the bequest of his granddaughter, Katherine Brown Barnett, in paragraph XIV of the will. It is therein provided: “The provision herein made for my said granddaughter is in lieu of, and to represent, her mother’s portion of my estate, and she shall have no further interest in nor claim upon my estate. ’ ’ This *749 indicates that he was anxious to provide for every branch of his family. It was the patriarchal spirit that we mentioned in the forefront of this opinion asserting itself. When we take into consideration that it is an accepted rule of construction in the interpretation of wills that a presumption exists against the testator’s disinheriting direct descendants, our foregoing reflections are important. Barker v. Haner, 111 W. Va. 237, 161 S. E. 34. This is the rule in other jurisdictions. Cummings v. Pendleton, 112 Conn. 569, 153 Atl. 175; Dahmer v. Wensler, 350 Ill. 23, 182 N. E. 799; I Page on Wills (2d Ed.) 1388. A construction which will disinherit the natural objects of testator’s bounty is not favored, and the construction which conforms so far as possible to our statute of distributions is to be preferred. Conklin v. Davis, 63 Conn. 377, 28 Atl. 537. Account should be taken of the relative situation of the parties, the ties of' affection subsisting between them, and the motives which would naturally influence the mind of the testator, as well as the existence of a moral duty on his part toward the party who will benefit from compliance with his desires and recommendations. Poor v. Bradbury, 196 Mass. 207, 81 N. E. 882. In the construction of wills “uniform justice is better than strict consistency” because “the testator necessarily confides his meaning to an instrument which courts of equity are sacredly enjoined to interpret, justly as between him and those he leaves behind, should controversy arise, death having closed his own lips. ’ ’ Schouler on Wills and Administration, p. 529, note 1. The construction sought here by the appellee is consonant with the best rules of construction. So, a holding in accordance with the second plan proposed in the bill of complaint is not inequitable. It is. not a result which it can be confidently said the testator did not contemplate or the law does not sanction. It is a fair and equitable distribution among members of the class designated by the testator as beneficiaries. The tenor of the will under review discloses that the testator intended to provide for his children and their families in the spirit of equality. This purpose may be carried out in fairness *750 to all by a decree holding that Davis Elkins, Katherine Elkins Hitt and the infant, Stephen B. Elkins III, share equally in the controversial fund. Reversed.