Witherspoon v. Watts

The opinion of the court was delivered by Mr. Justice Aldrich. I have been so continuously engaged since the hearing of this case and Pope v. Mathews, that I have not had time to prepare the opinions. My circuits last year were the Eighth, First and Second, which are three of the largest in the State; the business had accumulated and the chambers business on my own circuit was more than usually pressing. As I think my first care is to my circuit duties, I have not had the time to devote to the extra call of the Supreme Court, before now. The appeal from the exhaustive decree of Judge Kershaw, who heard the cause, presents several interesting questions, which' he has so clearly stated and discussed that it will not be necessary to encumber this opinion by a statement of the same. The first question to which the learned judge addresses himself, is the balance due by J. W. Watts, which is charged by the [422] referee to both executors, Watts and Anderson. Undoubtedly the rule is, that one executor shall not be responsible for the assets which came into the hands of his co-executor. This is a question of fact, and the Circuit judge, after a full hearing and a mature consideration of the evidence and argument, has decided that it is properly chargeable only to the executor J. W. Watts. I see no reason to dissent from his conclusion of law and fact. See Circuit decree and authorities there cited. From the evidence, it does appear that there are assets still in the hands of the executors, and there should be an accounting for the balance yet to be administered. It is so ordered. Next, as to the appointment of a receiver. When a testator, in the most solemn act of his life, deliberately selects two of his friends to act as his executors, his wish is to be regarded, and the appointment he thus makes is not lightly to be set aside. He does not select them because of their ability to respond, but for their integrity and the trust and confidence he has in their friendship and honor. In this case, the testator well knew that these gentlemen were in moderate circumstances, if not insolvent; that the ample estate he was entrusting to their charge, if wasted, would be irrevocably lost and his bounty to his wife and children defeated. With these facts before him, he trusts them with his all, in full faith and confidence that these objects of his love and bounty will not be defrauded by his life-long, trusted friends. Are we to close our ears to this voice from the' grave, and say, “ You have made a mistake; your friends are not to be trusted,” and thus condemn the judgment of the dead and cast a reproach upon the living? An executor may commit errors in his accounts, make mistakes in his construction of the will; these the court will correct, but will not remove the executor unless there is willful misconduct, waste, or improper disposition of the assets, as is said in Wins. Ex., and approved in our own court, in Stairly v. Rabe. The decree of the presiding judge is sustained. Testator died in 1870. In April, 1873, two years and ten months after, the widow, Mrs. Anna E. Williams, renounced her interest under the will, and elected to take her dower. The proceedings in dower were had in the Probate Court, and the executors directed to pay her $12,400, the assessed value of the [423] ■dower. The only question here is, How is this dower to be assessed ? Dower being that estate which the wife has in the lands of which her husband was seized during coverture, it seems to me there can be no question she is entitled to have it assessed in each particular tract of land of which the testator was seized. And if, instead of assigning her the land, one-sixth ■of the value thereof is admeasured to her, as in this case, it follows that each tract must contribute its proportion of .value. For as, if the land be assigned, she takes one-third, for life, in land, that is, the land from which it is admeasured, so, when money is assigned, the land which the money represents is the land out of which the money is to be raised. The moment the widow renounced her interest under the will, she stood as much a stranger thereto as if she had not been mentioned in that instrument. She was entitled to her legal estate and entitled to it out of the land, no matter who is in possession, or how long and for what consideration, before his death, the husband had aliened it. It makes no difference what disposition the testator has made, he could not divest her of her legal estate, favored by the law, by giving her a legacy, and, when she renounced the legacy, the only way in which she could receive her dower was out of each separate tract of which he had been seized; or, if the admeasurement be in money, then the land representing' the money is liable therefor. The Circuit judge is right in ordering, “the assessment for dower must, therefore, be paid by the devisees of the land or their proceeds, when sold. Whatever funds may have been actually employed in paying off this assessment, must be replaced by the devisees, or by the executors, out of the proceeds of land sold or to be sold, to the extent that they are liable to dower.” And this is manifestly the rule, for if the dower be paid out of the general estate, it may absorb the assets and thus defeat creditors and specific legatees. The next question is, Are the legacies in trust for Washington A. Williams Anderson and John D. Williams Watts general or specific ? If the clauses in the will in which these legacies are made stood alone, undoubtedly they would be general. But the will is the law of the case. Now, what did the testator [424] intend ? There was no doubt in his mind that each of these boys would receive every cent of the bounty he intended for them, as evidence of his affection for the sons of his trusted friends, who had named them after his deceased son and himself. He was a man of ample means, had an estate that far exceeded his pecuniary liabilities. In disposing of it, he bequeathed the great bulk of all he possessed in the first ten clauses of his will. Then, to show the nature of these bequests, how he regarded and intended them, he calls them specific legacies, by using this emphatic language, “ having specifically disposed.” It is the province and the rule of the courts to give effect to-every clause of a will, and always to carry out the intent of a testator, when that intent can be ascertained. That he intended them to have this pecuniary legacy, is clear; that he knew there was ample property to pay, is equally clear; but, to make his bounty and his meaning certain and unfailing, he uses the significant expression, “ specifically disposed.” The testator was a. man of large business capacity, an educated gentleman, a “ pretty good lawyer,” as he is described. Is it to be supposed that such a man used the expressive words, “specifically disposed,” at random, without a purpose? I think not. He intended to-make those legacies specific, and that the youths should be .the recipients of his bounty, beyond a peradventure. The Circuit judge is herein sustained. The last important question is as to the Spring Grove place. Hid John G. Williams have title to this tract of land? The testimony is so full and the reasoning of the decree so conclusive, that it is unnecessary to enlarge on this topic. It is very clear the testator never regarded the land as the property of his son,, and never intended it to be subject to his creditors. His wish to induce his son to remove from the place, his disposition of it in his will, is conclusive that he did not suppose he had given the land to John G., or that he had acquired title thereto. And John G. knew that as well as his father. These are the main points in the case. The other questions, are satisfactorily disposed of in the Circuit decree. The appeal is dismissed.