Orme v. Tolbert

Evans, P. J. (After stating the foregoing facts.) The correctness of the judgment complained of involves a construction of the will of Mark L. Tolbert. If we give to it a fair interpretation, the only conclusion which can be reached is that the share devised to his son Mark, upon his death before the 25th birthday anniversary of his sister Alline, passed to his surviving brother and sister under the will, subject to the limitations therein imposed. The second item of the will relates to the powers given to his executors in raising funds to pay his debts and to free his property from incumbrances. The third item expresses a testamentary scheme to hold the corpus of the estate together until the 25th anniversary of the birth of his daughter; with a monthly division of the income amongst his children during this period, with provision that upon the death of a child the income during this period should be divided among the survivors. It will be seen that item three does not purport to dispose of the corpus of the estate. The testator deals with that'question in items five and six.- The testamentary expression is clear that upon the 25th anniversary of his youngest child, who was his daughter Alline, the executors were to turn over to his three children, Mark, Harry, and Alline, all the property in their hands; but should one or more of his children be dead at that time; all of his property should go to and belong to [117] the survivors or survivor of them; and in the event all of his children had died before the period fixed for distribution, his whole estate was to go to and belong to the children of his sister and his named brother. Such is the plain meaning of the testator’s language. It is said that it is so improbable that the testator would desire to cut off from his bounty the offspring of a child dying before the period of distribution, that we should read into his will the testamentary intent that the devise of the interest of a deceased child to the survivors was dependent on the death of the child without issue. The testator used no language indicative of such intent. That he did not. have such intent in mind is deducible, not only from the language employed, in item five, but also from the sixth item, which conveys his whole estate to persons indicated, if all of his children had died prior to the time fixed by the testator for distribution. The will is unambiguous in expression. We fully recognize the rule that in an effort to ascertain the intention of the testator the court may transpose sentences or clauses and change connecting -conjunctions, or even supply omitted words, in cases where the clause as it stands is unintelligible or inoperative, and the proof of intention is. clear and unquestionable; but this very rule demands that “if the clause as it stands may have effect, it shall be so construed, however well satisfied the court may be of a different testamentary intention.” Civil Code (1910), § 3900. It is the duty of courts to construe, and. not to make wills. Under our construction, upon the death of Mark, the corpus of the property devised to him and income accruing after his death passed to his surviving brother and sister under the will; and the action to recover the same was properly dismissed on demurrer. Judgment affirmed. All the Justices concur.