Lefeavre v. Pennington

George Rose Smith, J. Tbis is a proceeding instituted by tbe executor of tbe will of Dr. J. W. Pennington, to obtain a construction of tbe residuary clause. Tbis clause reads: “Tbe Bal. to be divided equally between all of our nephews and nieces on my wife’s side and my niece, Natbalee Pennington, of Lawrenceburg, Tennessee.” Tbe trial court construed tbe will as giving balf tbe residuary estate to tbe appellee, Natbalee Pennington. Tbe twenty-two appellants, who are tbe testator’s nephews and nieces on bis wife’s side, contend that tbe property should be distributed equally among all tbe beneficiaries, so that tbe appellee would receive a twenty-third instead of a balf. We agree with tbe trial court’s conclusion. To begin with, tbe testator used tbe word “between,” which in its literal sense applies to only two objects, as “between Scylla and Cbarybdis. ’ ’ If tbe reference is to more than two tbe preposition should be “among.” Webster’s New International Dictionary. In several cases tbe courts have stressed tbis distinction in bolding that language such as that now before us contemplates a division of tbe legatees into two classes. In re Moore's Estate, 157 Pa. Super. 296, 43 A. 2d 359; Roelf’s Cousins v. White, 75 Ore. 549, 147 P. 753. It is probably true, however, that most people do not habitually observe the distinction between the two words. For that reason we do not rest our decision on this point alone but prefer to treat this as a case of ambiguity. We may therefore look to the state of the testator’s feelings toward the various beneficiaries as an aid in arriving at his intention. Rufty v. Brantly, 204 Ark. 32, 161 S. W. 2d 11. There was testimony showing that Dr. Pennington had a warm affection for Nathalee. The two wrote to each other often, and he had visited in her home in Tennessee. Dr. Pennington had sent Nathalee various gifts, including a fountain pen, a $500 United States bond, and $10 a month when she was ill for five months. At the trial Nathalee described herself as her uncle’s favorite niece. This evidence confirms our belief that Dr. Pennington meant for half of his residuary estate to go to Natha-lee and for the other half to be divided among the appellants. It is not without significance that Dr. Pennington described the appellants merely as a class, apparently not caring whether the class increased or decreased in number before his own death. Nathalee, on the other hand, was singled out for individual mention. This different treatment may well have been due to the fact that Dr. Pennington did not entertain for each of the twenty-two appellants the same close affection that he had for Nathalee. Finally, a per capita distribution among all twenty-three litigants would be a somewhat unnatural division of the estate. Many men feel that property acquired during marriage belongs jointly to the husband and wife, no matter which one holds the legal title. Consequently it is not at all unusual for a childless widower to divide his estate equally between his own family and that of his wife. We think it much more likely that Dr. Pennington intended such a division than that he meant to give twenty-two twenty-thirds to his wife’s relatives and only one twenty-third to Ms own kin. Thus the literal meaning of the language, the state of the testator’s affections, and a natural distribution of the estate all point to the construction adopted by the trial court. Affirmed. Holt and Dunaway, JJ., dissent.