Cowles v. Henry

BUCK, J. The counsel for the appellant has relieved us of the necessity of discussing the question as to whether the .court below erred in rejecting the evidence offered in regard to the amount collected or received as rents and income from the real estate devised by Robert F. Gillam to his father, James W. Gillam, and to his mother, Helen Ann Gillam, or the survivor of them, because, if the counsel is wrong in the legal effect which he claims for the will, then the evidence offered by him and excluded by the court was immaterial. The controversy is over the legal effect of the third clause of the will, -which, reads as follows: “Third. All the rest, residue, and remainder of my property, real, personal, and mixed, and of every kind and nature, and wheresoever situate, I give, bequeath, and devise unto my father, James W. Gillam, and to my mother, Helen Ann Gillam, and to the survivor of them, for and during the term of their [461] natural lives and the natural life of such survivor, with right to use, in addition to the income, rents, and issues thereof, so much of the personal estate absolutely as may be necessary for their personal maintenance and comfort; and, upon and at the death of the survivor of my said parents, I give, bequeath, and devise all of the same property, of every kind, or so much thereof as may then remain, to my brother, Henry Gillam of Topeka, Kansas, and to my sisters, Josephine H. Cowles and Hannah Eliza Henry, share and share alike, and to their heirs taking by representation, to have and to hold the same to my said brother and sisters, their heirs and assigns, to their own use, forever.” The appellant asserts, as a proposition of law, that the first and great object of inquiry in the construction of a will is the intention of the testator. With this proposition we are in accord, but, when the language of the will is free from ambiguity, there is no need of construction or interpretation to find the intent except as the same appears in the well-understood meaning of the language in the will itself. The language used in. this will is free from ambiguity, and we find out the sense of the form of words used by simply reading them. The testator is presumed to have used them in the ordinary and popular sense; and, so considering them, it is apparent that the absolute title- to the rents and income from the real, personal, and mixed property described in the third clause of the will passed to the father and mother of the testator and the survivor of them, and that upon the death no vested remainder therein passed to the other devisees. If there was not enough of such rents and income, then the father and mother had an absolute right to use in addition thereto so much of the personal estate as might be necessary for their personal maintenance and comfort; but the rental belonged to the life tenants, and upon their deaths, if any remained, it would be administered as part of their estates, and not of the estate of Robert T. Gillam. Therefore, whether the respondent collected the rents and income of the estate so devised is no concern of this appellant, at least not by a proceeding of this nature. If she has any such funds in her possession, that is a matter between respondent and the representatives of Helen Ann Gillam. The order appealed from is therefore affirmed.