Houser v. Ruffner

PattoN, Judge, announced the opinion of the court : There are a number of questions raised by the record in this case, which have been argued by counsel. I deem it necessary to consider only two. If in the suit brought by Cecil and wife it was adjudicated by the court, what interest Maria McFarland took under the will of James C. McFarland in the personalty, whether an absolute estate or only an estate for Iife; that adjudication can not be called in question in this suit, and the rights of the parties must be considered as settled and determined. It is necessary then to see, whether that question was in issue in that suit and adjudicated by the court, and whether such adjudication is so presented by the record in this suit, as to warrant the court in considering the matter at all. The complainants in their bill make the bill and two decrees in Cecil and wife v. McFarland et als., a part of their bill and allege, that by those decrees one third of said estate both real and personal was allotted to Maria McFarland for her natural life. It is not however distinctly claimed, that those decrees were an adjudication of the question, what estate she took in the personalty. Nor does it appear, whether complainants rely upon those decrees as an adjudication of that question. But still if it appears by the bill of the complainants, that there has been an adjudication of the question by a court of competent jurisdiction in a proceeding, in which that question could properly arise, and between the same parties or — 251 — their privies to this controversy, it is res judiecda, although it is not so claimed or relied upon either in the bill or in the answer. If the bill shows a want of equity upon its face, the complainants are entitled to no relief. If it exhibits so much of the record of a former suit, as shows an adjudication of the matter in controversy, there is a want of equity; but it must distinctly appear, that the matter was' in issue and was adjudicated. It is not sufficient,, that it was incidentally cognizable by the court, and that the adjudication be inferred by argument from the decree. 7 Bob. Pr. 5; 10 W. Va. 250. The suit of Cecil and wife was brought to partition the real estate and distribute the personalty under the provisions of the will. The bill alleges, that Maria McFarland took only a life interest in the personal estate, and, so far as that portion of the record exhibited in this cause shows, that construction' of the will was not denied by the answer. It appears by the decrees, that one third of the real estate was allotted to Maria McFarland ‘Muring the term of her natural life;” that one third of the personalty was decreed to her without words of qualification ; from which by argument it might be inferred, that it was intended, she should take the real estate for life but the personalty absolutely. If before there could have been a decree directing the administrator to pay over to Maria McFarland one third of the personal estate, it was necessai’y to determine, whether she was to hold it absolutely or only for life, or if the law required, that before a life-tenant was entitled to receive money or other personal chattels, he should give bond and security for the forthcoming of the money or other personal chattel at his death, the decree in Cecil and wife v. McFarland would be construed as an adjudication of the quantity of estate Maria McFarland took in the property. But I do not understand, that it was necessary to determine that question. Whether she took it as tenant for life or absolutely, she was equally entitled to the possession of it; and the decree only directed the administrator to do, what under the law it was his duty to do without decree. I know of no law, which requires a life-tenant to give security for the return of money or other property upon the termination of the life-estate, unless those in remainder or reversion show such special circumstances, as call — 252 — for the intervention of a court of equity by bill of quia timet. Chisholm v. Starke, 3 Call. 25; Holliday et ux. v. Colman, 2 Munf. 162; Mortemer v. Moftatt et ux., 4 H. & M. 503; Frazier v. Bevil, et al. 11 Gratt. 9; Dunbar’s ex’rs v. Woodcock’s ez’rs, 10 Leigh 628; Weeks v. Weeks, 5 N. H. 326; Scott v. Price, 2 Serg. & R. 59. Godwin’s adm’r v. Godwin’s adm’r, 4 Leigh. 410, would seem to lay down a different doctrine. In that case an administrator sold certain slaves under the apprehension, that the proceeds would be necessary to pay debts. It turned out otherwise, and the question was, what interest the widow took in the proceeds. If the slaves had not been sold, she would have been entitled by statute to one third of them for life. Tucker, Judge, in delivering the opinion of the eoui*t held, that she took a life-estate in one third of the purchase-money. He uses this language: “The use of the purchase-money for life is therefore the most proper measure; and whenever her portion of purchase-money is so paid over to a widow for life, bond with security should be required of her for paying it over at her death to the persons entitled in remainder.” Judge Tucker cites no authority in support of his position, that the widow should be required to give security, draws no distinction between a life-tenant of money and other personal chattels, so as to take the case out of the general rule, gives no reason why security should be required, and does not discuss the question at all. There is this difference between the cases I have referred to and Godwin’s adm’r v. Godwin’s adm’r. In all of those cases the life-tenant took under the provisions of a will; in that case the life-tenant took by force of the law. Whatever importance may be attributed to that difference, and I must confess I can see no difference in principle, upon the ground that in the case of a will the testator had it in his power to require security, and his failure to do it was evidence of a personal trust and confidence, and in the case of a life-tenant by force of the law there is no personal trust and confidence, it does not affect the question I am considering. If the effect of Judge Tucker’s decision in Godwin’s adm’r v. Godwin’s adm’r is to hold that a life-tenant of money or other personal chattel is not entitled to the possession of such money or other chattel, — 253 — until bond with security is given for the return of the money or property upon the termination of the life-estate, then I am compelled to dissent from such decision, as contrary both to principle and authority. I know of no case where it has been held, that a life-tenant can be required to give security for the return of' the property, unless some special reasons are assigned, as in Chisholm v. Starke, 3 Call 25, and Frazier v. Bevil, 11 Gratt. 9. On the contrary, in Holliday v. Coleman et ux, 2 Munf. 162 and Mortimer v. Mofatt et ux, 4 H. & M. 503, the court refused to require security, saying in the latter case: “Yet the court will not rule the tenant for life to give security to have the property forthcoming at his death, unless there appear some danger of its being wasted or put out of the way.” There is no difference between money and any other personal chattel. Weeks v. Weeks, 5 N. H. 326; Scott v. Price, 2 Ser. & E. 59; Dunbar’s ex’r v. Woodcock’s ex’r, 10 Leigh 628. The fact, that in Godwin’s adm’r v. Godwin’s adm’r money was to be paid to the widow instead of other personal property could not have been the ground of the decision of Judge Tucker. In that case the widow was entitled to the slaves. They were converted into money without her assent and under a misapprehension upon the part of the administrator; she should not have been placed in a worse position with regard to the proceeds, than she was with regard to the thing sold. In Weeks v. Weeks supra, the court says : “There seems to have been much doubt among judges, what a person having a limited use of personal property bequeathed to him is to do. Some have thought, that the property must be turned into money, and the interest only be paid to the legatee; others have thought this would be a very rigid construction ; and it is now settled, that the tenant for life is to have the possession and is not to be compelled to give security but only to exhibit an inventory.” I think it clearly appears from the authorities and upon principle, that a life-tenant of personal property or money is entitled to the possession thereof and cannot be required to give security for the return of the property or money to those in remainder or reversion as a matter of course, but only as — 254 — a matter oí sound discretion in the courts to be exercised according to circumstances. I do not think it was necessary in Cecil et ux. v. McFarland to determine the quantity of estate in the personalty, which Maria McFarland took under the will; nor do I think, that the failure to require from her security for the money paid to her under the decrees can be considered as an indication, that the court intended by those decrees to determine that she took the money absolutely. I am of opinion, that the question, what estate in the personalty Maria McFarland took under the will of her husband, was not adjudicated in Cecil and wife v. McFarland. The question then arises: What estate in the personalty did she take under tbe will ? In considering wills the object is to ascertain the intention of the testator, which intention,, when once ascertained, must prevail, if not contrary to law. But to arrive at this intention, it is necessary to take the whole will together and not rely upon separate and isolated provisions. There is no rule for construing wills better settled, than that the general intent of the testator, to be gathered from the whole will, must prevail over the particular or special intent expressed in a part of the will, where from the language used it is impracticable to give effect to both the general intent, and the particular or special intent. Redfield on wills 432 thus expresses the rule: “Where the general-intent of the testator is clear, arid it is impracticable to give effect to all the language of the instrument expressive of some particular or special intent, the latter must yield to the former; but every expressed intent of the testator must be carried out, where it can be.” In Pue v. Pue, 1 Md. Chy. Dec. 382, it was held: “It is the duty of the courts to give effect to every part of a will without change or rejection, provided an effect can be given to it not inconsistent with the general intent of the whole will taken together. When there are two conflicting clauses the principle is, that you are not to disturb the prior devise farther than is absolutely necessary for the purpose of giving effect to posterior qualifying disposition. When a testator uses in one part of his will words having a clear meaning in law and in another part words inconsistent with the former, the first words are to be cancelled and overthrown, only when — 255 — tbe two provisions are totally inconsistent with each other, and where the real intention of the testator cannot be ascertained. It is now fully established, that the general intent of the testator, though first expressed, will overrule the particular intent.” In Pruden v. Pruden 14 Ohio St. 254, the court says: “It is our plain duty to give effect to the whole of this will, and, if necessary to effect this object, the right to restrain or modify the language of one part to make it consistent with another is unquestioned.” A clearly manifested intention in one part of a will ought not to yield to a provision of doubtful meaning. Dawes v. Swan et al., 4 Mass. 208; Cook v. Holmes, et ux, 11 Mass. 528; Rayfield v. Gaines, 17 Gratt 1; Bell, adm’r v. Humphreys, 8 W. Va. 1. Applying these principles to the will of James C. McFarland it seems to me evident, that it was the intention of the testator to dispose of his property just as the law would have "disposed of it, if he had died intestate, except that he desired to provide legacies to John Welch in trust for the children of Henry D. McFarland, deceased, to Julia Welch, and to Susan Welch contingent upon her marriage, and to provide for her support, if she did not marry. In the first clause of the will the testator provides for the payment of his debts and funeral expenses and the sale of so much of his personal property (except slaves), as will be necessary for those purposes. He then says in the second clause of the will: “The residue of my estate both real and personal after the payment of all myjustdebtsl devise to be divided, as the law prescribes, between my beloved wife and my children, no preferences being made, the children to have an equal share subject however to the following special legacies.” It cannot be doubted, that if this provision stood alone, his property both real and personal, so far as his widow and children were concerned, would have been distributed, as if he had died intestate. The widow would have taken a life-interest in the land and slaves and an absolute estate in all his other personal property (Code of Va. ch’s 110, 123 §§ 1 and 10 respectively; and the children would have taken the balance equally between them. The testator seems to. have contemplated, that for the payment of his debts, funeral expenses and the special bequests provided for in the second clause of his will his personal estate might — 256 — not be sufficient, for he adds: “These several bequests I desire to be paid, if practicable, out of my personal estate not including slaves.” But it is claimed, that by the third clause of the will the testator has changed, what would have been the proper and inevitable construction of the will, if the second clause stood alone, by providing in the third clause: “In regard to the division of my estate, whether the same shall consist of realty, stocks or personal property, slaves included, let the whole be appraised, and after providing for the legacies above named, set off one third for my wife during her natural life,” &c.; and that his intention was, that his wife should only take a life-estate in the property disposed of by the will, real and personal. It is evident, that the testator intended to dispose of his whole estate, for in both clauses his language is unmistakable o.n that subject. In the second clause he says: “The residue of my estate, both real and personal and in the. third clause he says after enumerating the different kinds of property, real and personal: “Let the whole be appraised.” There is no residuary clause to the will; and if it is held, that the widow took only a life-estate in the personalty, and there is no limitation over to any one in remainder, as to that portion of it, which was distributed to the widow for life, he died intestate. Courts will never so construe a will, if it can be avoided, as to create an intestacy, especially by giving to doubtful words or expressions a meaning, which would lead to that result. The second clause of the will disposed of all the testator’s property real and personal, as “the law prescribes,” between his wife and children. There is not a single word in the will, which indicates any other purpose, unless the doubtful expression in the third clause, “Set off one-third for my wife during her natural life,” can be construed as giving to the wife a less interest than provided for in the second clause. There is nothing in the general purpose of the will to indicate, that the testator intended his wife to take less than the law prescribed. The third clause does not purport to be a devising clause, but only in my view of it points out the mode, by which the property devised in the second shall be distributed between the parties. In summing up all the several — 257 — kinds of property, which, h.e contemplated, would pass under his will, the testator mentions property, to some of which, disposed of as “the law prescribes,” the widow would take a life estate, to-wit: land and slaves, and as to some of which she would take an absolute estate; that the testator had chiefly in his mind the former class of property, may be inferred from two circumstances: that from the provisions of the will, in which he directs the legacies to be paid out of his personal estate not including slaves, if practicable, he indicated an apprehension, that after the payment of debts his personal estate exclusive of slaves might not be sufficient to pay the legacies; for if it was, it would certainly have been practicable to pay the legacies without touching the slaves; second, the mode, in which he directs the residue of his estate after setting “off one-third for my wife during her natural life” to be divided; “the said parts to be drawn for by lot.” While I do not mean to say, that it was necessary that all the personal property of a decedent, except slaves, is required to be sold by the administrator, it was certainly the almost universal custom to do so; and I think from the mode of division indicated coupled with the fact, that the testator contemplated a possible deficit in the personalty exclusive of slaves to pay the legacies, it may be fairly inferred, that his mind in prescribing the mode of division was principally directed to what was the bulk of his estate, land and negroes. If so, and knowing, that in such property the flaw prescribed,’ that the widow should take an esfate for her natural life, it was most natural, that he should use those words in referring to the portion to be 'set off’ to her. Therefore in view of the facts, that the second clause of the will was the devising clause; that the third clause only pointed out how the property devised in the second clause was to be divided between the parties; that the testator had in view in the third clause chiefly that class of property, in which a widow took a life-estate; that there is no residuary clause; that there is no limitation ovei of the personal estate, which passed to her under the will; that to construe the words “during her natural life” in the third clause as changing and altering the devise and bequest to her in the second clause, so as to limit her estate in the personalty to a life-estate, would — 258 — create an intestacy as to that estate; that it was the general intent of the testator to dispose of his property between his widow and children as the “law prescribes;” that in the clause where he uses the expression “during her natural life,” he refers to two classes of property, in one of which “as the law prescribes” she took an estate “during her natural life,” and in the other an absolute estate; I am of opinion, that under the will of James C. McFarland Maria McFarland took a life-estate in the land, and would have also taken a life-estate in the property designated in the will as slaves, had property in slaves existed at his death, and an absolute estate in the personal property other than slaves; and that the decree of the circuit court of Kanawha county must be reversed with costs to the appellant, and the bill of the complainants dismissed with costs. The other Judges coNcurred. Decree Reversed.