Miller v. Flournoy's Heirs

CHILTON, C. J. —We fully concur with the counsel for the appellants, that the last clause in a will is to prevail over a preceding clause which cannot be reconciled with it; and also in the proposition, that where there is a general and a particular intent, equally apparent upon the will, and so repugnant that both cannot stand, the particular must yield to the general. But the great and cardinal rule which should govern in the obstruction of wills, as well as other instru* [727] merits, is, to give effect, if possible, to every part of it.—Stallsworth v. Stallsworth's Ex., 5 Ala. Rep. 148. When we consider all the provisions of this will together, we entertain no doubt as to the true intent and meaning of the testator. The ground of the complaint by the appellants is, that they have been excluded from a share of the slaves embraced in the fifth Item of the will, which declares, that these slaves, with their future increase, Ac., shall be and remain with the testator's wife, to-> use his own language, “ during her natural life or widowhood ; and at her death, or marriage, I give and bequeath said negroes, in this clause mentioned, to my children, George, William, Marcus, Augustus, and Eliza A. Flournoy, and such other children as I may hereafter have.” The. widow has since married, and by tlio terms of the bequest, the slaves go to the children named. Is there any thing in the ninth or residuary clause of the will, which requires this bequest to give way, and which thwarts this clearly expressed desire. That clause is as follows : “ Ninthly— I will and bequeath unto my wife, Eliza A. Flournoy, and to my children George, William, Marcus, Augustus, and Eliza. A. Flournoy, and to their heirs forever, all the rest and residue of my personal estate, to bo equally divided among them, share and share alike, in the manner hereinafter mentioned and described : and that each of my said children shall, upon arriving at full age in law, be entitled to demand, of and from my executrix and executors, hereinafter named, tlieir just distributive share of said estate, in this clause mentioned, to be ascertained and determined upon a fair valuation of all my property herein referred to, at the time of bis or her majority, by any three disinterested slaveholders of the county of Chambers ; always counting my said wife Eliza as a child, it being my intention to make her and all my children equally interested iu the disposition of my estate, including the five negroes heretofore mentioned iu the third (fourth ?) clause as reserved for the use of my wife and family.” la this clause, the testator evidently alludes to the residuum of his personal estate, including the live slaves which the wife is authorized by the fourth clause of the will to select arid retain during widowhood, to enable her to provide for; [728] keeping tlie family together. This estate is to be equally divided among them, share and share alike, in the manner thereinafter mentioned and described — to-wit, “to be ascertained and determined, upon a fair valuation of all my property herein referred to” (that is, as we understand it, referred to in this ninth clause) by three disinterested slaveholders, counting Ms wife as a child, it being his intention to make her and all his children equally interested in the disposition of his estate, (that is, of the estate here alluded to, and about the division of which he was then providing,) including the five negroes mentioned in the fourth clause as reserved for the use of the wife and family. Confining this equality of distribution to the residuum of the personal estate, the whole difficulty vanishes. If by the “ disposition of his estate,” the testator meant his entire property, why does he add “ including the five negroes” ? The inclusion of these, shows that the other bequests were excluded, upon the maxim, “ inclusio unius exclusio alterius ” and plainly limits the meaning of the testator to his residuary personal estate of which he was disposing by the ninth clause. The construction contended for by the appellants would defeat the will, and leave the parties pretty much in the same condition as if none had been made. It would render nugatory the conditional legacies 'given to the wife, which were made dependent upon her remaining a widow. We think the Probate Court decided correctly. Judgment affirmed.