Lusby v. Cobb

Whitfield, O. J., delivered the opinion of the court. J. O. Lusby, a resident of Washington county, of this state, died therein on the 22'd of October, 1900, possessed of an estate worth from $75,000 to $100,000. He was never married, and had neither father nor mother living at the time of his death, but during his life he had two sisters of the whole blood and two brothers of the half blood. His two sisters of the whole — 725 — blood died before he did, each of them leaving five childrefi. Two of these children afterwards married, and had children, and then died, one of them leaving a child, and, the other, three children; so that at the time of his death he left surviving him nephews and nieces, grandnephews and grandnieces, as descendants of his sisters of the whole blood, who are the appellees in this case, and two brothers of the half blood, who are the appellants. The two half brothers and one of the nephews resided in Louisiana, and all the rest resided in Texas. On the day of his death he made his last will and testament, disposing of his entire estate in the first item thereof, which is in the following language“I give, devise, and bequeath all the property, real and personal, mixed and choses in action, I may own at my death, wherever located and situated, to all my blood kind in Louisiana and Texas. Mr. Spink’s children in Texas heirs I do not know.” There are but two other items in his will, and they relate alone to the appointment of an executor and the payment of his debts. The will was probated in Washington county, and the nephews and nieces and grandnephews and grandnieces of the testator filed their bill in the chancery court of said county against the two half brothers, claiming that they are entitled, under said will, to the whole of said estate to the exclusion of the half brothers, and asked the court to construe said will, and to cancel the claim of the two half brothers as a cloud on their title. The two half brothers answered the bill, claiming that they were entitled to share per capita in said estate. Thereupon the case was heard on bill and answer, and the court decreed that the nephews and nieces and grandnephews and grandnieces of the whole blood were entitled to said estate to the exclusion of the two half brothers, and from that decree the two half brothers have appealed. The question for solution here presented is this: What did the testator himself mean by the words “all my blood kind in Louisiana and Texas?” Whom did he intend to take his estate ? The word “kind” was, of course,',used for “kin.” It is — 726 — doubtless true that the word “kin” standing alone in a will, without anything else to show what kin the testator meant, has received an interpretation supported by innumerable decisions to the effect that the kin meant are such kin as could take under the statute of descent and distribution. This is crystallized, but it must be remarked that it is operative alone in those wills where the testator has used no other words from which the court can determine what particular persons he meant by the mere word “kin.77 It is just as thoroughly settled as the rule itself that wherever there are other words in the will which disclose with reasonable certainty to the court what particular persons the testator meant by the word “kin,77 there, his intent being clear, and what he meant by use of the word “kin77 being thus made clear, the court will, of course, give to the word “kin77 the meaning the testator attached to it, whether that be the same as or different from the technical signification the courts have given the word “kin77 when standing alone and wholly unexplained. The object always sought in construing a will is the ascertainment of the testator’s intention. That intention must be ascertained from the words used in the will itself, since it is the function of courts merely to interpret, not to make, wills. It is, however, always competent to look to the situation of the testator with respect to his estate, his environment as related to his estate, or his devisees or legatees at the time of the making of the will. What was that environment in this case ? Here was a testator having no father nor mother nor wife or children, leaving an estate of about $100,-000 in value, and having nieces and nephews, grandnieces and grandnephews of the whole blood in the state of Texas, and having also one nephew of the whole blood and two brothers of the half blood in Louisiana, at the time of his death and of the execution of this will. He knew what estate he had. He was aware that the kin to whom he proposed to leave his estate were those living in Louisiana and Texas. He had in mind the fact that only one nephew of the whole blood and that two — 727 — brothers of the half blood lived in Louisiana at the time. We must deal with him, situated as he was, with the knowledge that he had, put ourselves as far as possible in his place, and, having done that, see if there be in the will language showing what he meant by the use of the words “all my blood kind in Louisiana and Texas.” The wiS^ls “all my blood kind” apply as well to the phrase “in Louisiana” as the one “in Texas,” and for the purposes of this case we máy read the clause as if written “all my blood kin in Loyásiana.” It is true, “kin” are, of course, “blood kin,” and that the same construction will obtain as if he had said “all'iny kin in Louisiana.” But we cannot concur with counsel for appellees that there is no significance in the words “all my kin,” in this connection. Considered in a purely abstract way, the phrase “all my kin” is doubtless equivalent to the phrase “my kin.” But when we take into consideration the fact that the testator, who used the phrase, “all my blood kind in Louisiana,” knew that he had but one person of the whole blood kin to him in Louisiana, it is inconceivable that he would use the phrase, “all my blood kind in Louisiana,” to designate simply one person. There was more than one person of his kin in Louisiana. There were three — two, indeed, of the half blood, but nevertheless “kin,” and “blood kin.” And it is inconceivable that the testator, with these facts in mind, should have made use of the words, “all my blood kind in Louisiana,” to designate just one of the three persons. “All” is a term of plural significance, and it is incongruous to apply it in this will as intended to designate but one. We think it is clear that this testator meant to embrace the two half-brothers within the scope of the words, “all my kind in Louisiana.” It would be useless to cite authorities on the one view or the other, in our opinion. They are admirably collected by the very learned counsel of the respective parties. If Ave were to write pages, we could not make the ground of our opinion any clearer; that ground being that this testator, knowing that he had two brothers of the half blood and only one nephew of — 728 — the whole blood — three persons — in Louisiana, must have meant the word “all” to have its usual plural significance, and so to embrace the three, and cannot reasonably be held to have used this word “all” as designating just one person. It is true enough, if he had had but the one nephew of the whole blood in Louisiana, the use of the words, “all of my blood kind in Louisiana,” would have applied to such a one; but that is not the same thing when we come to the matter of ascertaining the intention of the testator as making the word “all” — a word of plural significance — designate one of the three, when three were known to fulfil the condition of residence in Louisiana, by the testator, when he made the will. It advances the argument no whit to state — what cannot be denied — that the mere word “kin,” standing by itself, unexplained, is universally held to mean such kin as can take under the statute of descent and distribution, if the case be one in which the court, putting itself in the testator’s place, can find from other words used in the will that his intention was that the word “kin”should have, not its technical signification, but a meaning which he gives to it himself by the use of such other words. This testator localizes and restricts the kin — none but those who live in Louisiana and Texas can take. ILe then says that all such kin in Louisiana and Texas shall take. He has in mind the purpose to exclude, and' he uses apt words of locality to so exclude. If he had meant still further to shut out particular persons, would he not have used the very simple method of naming the one nephew of the whole blood in Louisiana ? Nothing was easier. On the contrary, his purpose was to give to all his kin —those localized in these two states — his property, and we cannot adopt the construction which would shut out the two half-brothers by making the word “all” plural in its significance, and evidently used by him comprehensively, point singly to one person merely, where three fit the description. We think this is the natural, obvious, and reasonable interpretation of this ■will. As well said by Hr. Schouler, in his work on Wills (sec. — 729 — 4-63) : “Authority in the mere verbal interpretation of wills carries no great weight, especially if the words and tenor of the whole will are not absolutely identical. The construction given to a verbal expression in one will is no positive criterion for all wills containing the same expression.” We heartily approve the wisdom of Mr. Justice Miller’s observations in Clarke v. Boorman's Ex'rs, 18 Wall., 502 (21 L. Ed., 904), where he says: “Of all legal instruments, wills are the most inartificial, the least to be governed in their construction by the settled use of technical legal terms; the will itself being often the production of persons not only ignorant of law, but of the correct use of the language in which it is written. Under this state of the science of the law applicable to the construction of wills, it may well be doubted if any other source of enlightenment in the construction of a will is of much more assistance than the application of natural reason to the language of the instrument, under the light which may be thrown upon the intent of the testator by the extrinsic circumstances concerning its execution, and connecting the parties and the property devised with the testator and with the instrument itself.” We also approve of Mr. Justice Taney’s remarks, in Bosley v. Wyatt, 14 How., 390 (14 L. Ed., 468), where he says: “No two wills probably were ever written in precisely the same language throughout; nor any two testators died under the same circumstances in relation to their estate, family, and friends; and it would be very unsafe, as well as unjust, to expound the will of one man by the construction which a court of justice had given to that of another, merely because similar words were used in particular parts of it.” Here is a man evidently dealing most comprehensively. He devises a v.ery large estate, of the value of nearly $100,000, in one sentence, with no particular directions. His whole will consists of this devise, in one sentence, and the direction that his debts should be paid, and a nomination of an executor. Manifestly, he dealt in a most sweeping and comprehensive way with his property, without particular — 730 — izing; and just so lie designated who should take. He has but two thoughts in view — to exclude all his kin except those residing' in Louisiana and Texas, and includeall those thus grouped within his bounty. He knew that there were three in Louisiana, and so he does not name the one of the whole blood, which would have been easy to do, but uses the broad, comprehensive word “all,” of plural significance, meaning, as we think, clearly to apply it to the three, and not meaning to apply it illogically to but one. Reversed and remanded.