Ballentine v. Foster

DOWDELL, J. The sixth clause of the last will and testament -of Samuel Watkins, deceased, under which the complainants here assert their title and claim an interest in the lands in controversy, received a construction from this court, as to the nature and extent of the estate and interest created under said clause in the case of Phinizy v. Foster, 90 Ala. 262. We adhere [642] to the conclusions there reached, and for a full discussion of the subject, with citation of authorities, content ourselves with referring to that ease. There the litigation arose between those children of Paul J. Watkins who were living at the death of Edgar Watkins, the life tenant, and the grandchildren of said Paul J. whose parents died before itlie happening of that event: Here, the controversy is between the children of said Paul J. 'who were living at death of said Edgar, and those claiming -in their right, on the one side, and the-children of Mary Ballentine, the only child of Elmira O. Swoope, daughter of Samuel Watkins, deceased, and sister to said Paul J. on the other side. In the case of Phinizy v. Foster, supra, it was decided that the devise under said sixth clause of the will was to a class, and that only those of the class who were living at itlie termination of the precedent estate took an interest in the estate devised. The sixth item or clause of the will reads as follows: “In the event of my son Edgar dying without issue living at his death, I desire his portion, without accumulations, do he divided equally among the children of Paul J. Watkins and my daughter Elmira, and in the ('vent of my daughter Elmira dying without issue living at her death, I desire the estate left to heir and her children, together with accumulations, to be equally divided among all my grandchildren and great-grandchildren, but great-grandchildren whose parents are living and able to take under this will not included in this bequest.” It is contended by complainants, who are the appellants here, and are grandchildren of said Elmira O. Swoope, that by the terms of the will, under the limitation, over one-lialf of the estate went to the children of Paul J. Watkins to be equally divided among them, and one-half to Elmira O. Swoope; while on the other hand it is contended by the respondents that the limitation over was devised bo such of the children of Paul J. and of Elmira O. as were living at the death of said Edgar, the life tenant. And this, we think, is the vital question presented in the case, and upon its so [643] lution tlie i*igilts of these complainants to an interest in the lands sought to he partitioned must depend. Unless the complainants are right in their contention that- the devise was to Elmira C., and not to the children of Elmira, under the authority of Phinizy v. Foster, supra, they have no claim or title to an interest in the lands, since Mary Ballentine, the mother of the complainants, and only child of said Elmira C., died before the termination of tlie particular estate, and only those children of Elmira and Paul J. who survived Edgar could take an interest. In applying the familiar rule of construction of a will, that the intention of the testator must control, and that such 'intention is to. be ascertained from the context of the will, and the surrounding’s of tlie testator as disclosed by the will, we concur with the learned chancellor in the opinion that the testator intended to give the remainder of the residue of his estate, after the death of the life tenant, Edgar Watkins, without issue living at his death, to the children of Paul J. Watkins' and the children of Elmira C. Swoope. Paul was his son, and Elmira his daughter, and both had children living at the date of itlie will. The testator had already made provision in his will for both Paul J. and Elmira O. No good reason appears why this particular devise should be made to tlie children of Paul J. to the exclusion of tbe children of Elmira C. Besides, in another part of the will, in providing for his daughter, Elmira O., whose husband was then living, he was careful to place the management of the esate left to her beyond the control of her said husband. Moreover, the words, “equally divided among,” which are employed in this item, conveys the idea that it was in the mind of the testator that the gift should be taken by the. children of his son and daughter per capita, and that it should be taken by two-classes, the children of his son, Paul J., representing one class, and'his daughter, Elmira C. Swoope, the other. Much stress in argument is laid upon the use 'by the testator in the devise of the words, “my daughter Elmira,” blit when 'tfe consider the fact that these same [644] words, “mv daughter,” are uiformnly employed by the testator throughout his will in every reference to El.mira, no special significance can attach to them when employed in the (danse under consideration. As, we have said, having already made provision under his will for both Paul J. and Elmira 0., the testator had in min'd in this particular devise over after [the termination of the life estate of Edgar, and upon the contingency of his dying without issue, the children of Paul J. and of Elmira C. The language employed by the testator, “to be equally divided among,” in making the gift over is opposed •¡to the idea of an intention on the part of the testator . to divide the estate into moieties, one to the children of said Paul J., and the other moiety to his daughter, Elmira C. Swoope; for this construction would necessarily involve the idea of a still further division of one of the moieties among the children of said Paul J. Nor on the other hand, is it reasonable to conclude that it was the intention of the testator to place his daughter, Elmira C., upon an equal footing with the children of said Paul J., who were his grandchildren, in a division of' the estate; that is to say, to give her a portion ■ equal to a grandchild’s portion. By the use of these words, “equally among,” according to the definitions given to them by standard lexicographers (see Century and Standard dictionaries), it is wholly improbabld that the testator could have intended other than a par capita distribution among the several grandchildren. There is no merit in the contention that the chanc. ,llor ■erred in dismissing the hill without giving complainants an opportunity to amend. The cause was submitted on demurrer and motion to dismiss for want of equity, and in the decree sustaining the demurrer and motion to dismiss, an opportunity of amending was given by the chancellor. It is unnecessary to notice other questions argued by counsel, since our construction of the will leaves the complainants’ bill without equity. The decree of the chancery court «must be affirmed.