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equally divided between my eight children," is, to “the remainder, the balance, or the and wherein the word "all" is relied upon residue, the portion of his property not thereas creating a repugnancy, to which the court tofore disposed of under the previous parastates: “If the testator had said, 'All my re- graphs in his will; that by mistake or inadmaining property, no one would doubt but vertence he omitted to supply the necessary that the devise under the first clause was words to state his intent correctly. There absolute, and that it carved out of the es- are many reasons which lead to this contate one-third. That is, I think, its true clusion, and overcome any presumption that construction.
The last clause of he had changed his mind when he wrote the the sentence, that which directs division of tenth paragraph, and intended by it to canthe property, is made coherent and intelli- cel or annul the nine paragraphs precedgible by applying it to such property as had ing it. not been before disposed of. So construed, Having reached this conclusion, we are there is no repugnancy.
So consid- justified, by reason and from the authorities, ered, the provisions of the will harmonize, in reading into the will the necessary lanand each has full effect. The residuary guage in order to effectuate that intent. For clause is not repugnant to the prior gift, instance, it is quite proper to assume that, and the devise may take effect according to having made certain specific bequests of its terms.
We thus follow the rule which certain amounts of money to specific perrequires a will to be so construed as to sons and other articles to other persons, avoid, if possible, all repugnancy, and give when he was writing the tenth paragraph effect to all its language. We have here no he had in mind that the property covered by occasion to depart from it. The two clauses the previous bequests was then disposed of, are not irreconcilable; and there is no occa- out of the way, and by the tenth paragraph sion, therefore, to reject one in order to up- he intended to give his wife all the prophold the other-a desperate remedy, and to erty which he had not then disposed of in be resorted to only in case of necessity,” the preceding paragraphs. This seems to be
In the case of Davis et al. v. Boggs et al., borne out by the use of the word "said" in 20 Ohio St. 550, the words "in trust only" the eleventh paragraph, wherein he states, were stricken or given no effect in the con-“Should my wife die before I do, then the struction of the will; it being held in their said property will become the property of ordinary technical sense that they were re- my son, William Henry Bacon.” Had he pugnant to the general scope and tenor of changed his mind, as contended, and intendthe will, and for which reason were not giv-ed to disinherit the other relatives, and had en legal effect in its construction.
he intended the word "all,” in the tenth In the case of Hellerman's Appeal, 115 Pa. paragraph, to be accepted in its literal sense, 120, 8 Atl. 768, the words “per annum” were we think he would have used the same word inserted in the will in which case the court in the eleventh paragraph, and stated, "in held that a word may be supplied when case of the death of my wife before I die, there is a clear inference from the whole then I give all my property both real and will that it was omitted by mistake.
personal to my son.” In the case of Kellogg V. Mix, 37 Conn. Other reasons which could be legitimately 243, the court supplied the words “the net inferred are those stated by Judge Lacy in income of my estate.”
a similar case—that of Price v. Cole's Ex'x In Wheable v. Withers, 16 Simons, 504, et als., supra-wherein he states: “The the court supplied the words “under twenty-first section of the will, standing alone, gives one years of age.”
the land therein mentioned to the nephew. In Doe, on the Demise of Sam. Cotton, v. The second section, standing alone, gives Stenlake, 12 East, 514, the words “during everything the testator possessed to the sistheir lives” were rejected, thus making a ter. Standing together, they are conflicting life estate an estate in fee simple.
and contradictory. The will, however, must In Holmes v. Williams, 1 Root (Conn.) 335, be construed as a whole.” It was further 1 Am. Dec. 49, the court supplied the words stated: "If the second was intended to dis"before he arrived at full age,” in order to pose of everything he possessed, and revoke effectuate the evident intent of the testator. the first, no hint is to be found of any such
In Glover et al. v. Condell et al., 163 Ill. intention to revoke, and the specific devise 566, 45 N. E. 173, 35 L. R. A. 360, the words is not again mentioned. The very use of "of the income" or "of the interest" or "of the designation 'second' indicates that it is the dividends" were supplied to effectuate not all, but that something has gone before; the intention of the testator.
a second part is a distinct recognition of Applying these principles to the case at the first part. And, obviously, the meaning bar, when this will is considered as a whole, of the testator is: 'Second-that is, after with a view of ascertaining the intent of first-I give,' etc.; 'I have given in the first the testator, in the light of his circumstan- place, and I now give in the second place.' ces and the property which he is disposing The will is upon the same piece of paper, of in his will, we are led to conclude that and written apparently upon the same day, he intended the words used in the tenth and in this case it would be, as is observed than sound to undertake to say that the tes- that he would have stated in it that he so intator had changed his mind since writing tended? We think so. As stated by the the first part of the will. The testator must court in Claflin v. Ashton, supra: “Such a be held to mean, as he doubtless did: 'Hav- purpose, if entertained, would naturally have ing regard to the first provision in my will, been expressed in direct language.” If he I now, secondly, provide,' etc. It is reason- had intended when he wrote the tenth paraable to suppose that if he had so suddenly graph to annul everything preceding it, would and so radically changed his intention that he not have simply torn the instrument up he would not have left the fact to an in- and drafted a new one? This would have ference so vague and irrational."
consumed no more time, would have been It is conceded that Mr. Bacon was not much shorter than the paragraphs preceding learned in the law and that he had evidently the tenth, and by a few short sentences like written the will himself. Outside of the con- those in the tenth, eleventh, and twelfth struction which the law places upon conflict- paragraphs of this will he could thereby have ing provisions in an instrument, if accepted conveyed his entire intentions and relieved in its literal sense (which it must be conced- any questions concerning it. Any of these ed he intended as to all of it, if any), he in- conclusions we think are far more rationable tended thereby to take away not only the than the one that he intended to revoke all gold watch and chain bequeathed to the hus- former bequests, or intended the language band of his niece in the fourth paragraph, used in its literal sense, unless he omitted to but also the gold watch and all his dia- insert therein the words above indicated, or monds bequeathed to his son in the ninth similar ones, which would clearly express his paragraph of the will, and give them all to his intentions. It is more reasonable to indulge wife under a principle that he had changed in these presumptions than to suppose that he his mind. In commenting upon this principle designedly made the tenth paragraph repugthe Chancellor, in Covenhoven v. Shuler, 2 nant to the other provisions of the will so Paige (N. Y.) 122, 21 Am. Dec. 73, states “a they could not be harmonized or all carried principle which I consider more fanciful than into effect. sound."
This disposition of the principal question In writing the tenth paragraph he may answers the other—that the will should not have had in mind the reservation in the origi- be held void for uncertainty. nal deed to his son, in which case there may For the reasons stated, the judgment of the have been a doubt in his mind as to the res-district court should be affirmed, and it is so ervation therein passing the title to the pos-ordered. session, use, rents, and profits of said prop- Affirmed. erty to his wife during her lifetime, after his decease, should she him survive, and in MUSSER, J., not participating. this manner, without raising any suspicion concerning the doubt in his own mind, he GABBERT, J. (dissenting). The court has would thereby, under the will, cover the ques- made a will for the testator instead of contion beyond any doubt, so that in case the struing the one he did make. It is not our $600 per month rental was not lawfully re- province to bend, twist, or shape the text served to her under the deed executed to his of a will, or add or eliminate words until at son, but became part of his estate during her last we may succeed in forcing it into the natural life, it would, under this clause of the mold of our preconceived ideas of what the will, go to his wife, and be covered, beyond testator intended, but simply and solely to any doubt. As stated, while the deed shows ascertain its true legal sense from the lanit was executed by both Mr. and Mrs. Bacon guage employed, whatever that may be, by to their son, it is stipulated in the record that the application of the rules of law which Mrs. Bacon had no interest in the land men- must control in the exposition of a will. tioned in this deed prior to its execution. So There is an irreconcilable conflict between far as the record shows Mr. Bacon himself the paragraphs involved. No specific propwas the absolute owner of it. The question erty is charged with the payment of the beas to the effect of the reservation in the deed quests preceding the one to Mrs. Bacon. They upon the possession, use, rents, and profits of are not to be paid out of any particular the property, during the life of the wife, after fund, and, if paid, must be satisfied from the his death, while not involved in this conten- general estate of the testator. The bequest tion, might readily be raised in the mind of to Mrs. Bacon is also general, for thereby one not learned in the law, but Mr. Bacon the testator bequeaths to her all his real by using this language in the will may have estate, and all his personal property of evthought he would thus place the matter at ery description, and all his moneys, notes, rest in his own mind.
bonds, or stocks, possessed by him at the Again, in case he intended by the tenth time of his death.
time of his death. The several general beparagraph of the will to revoke all the for-quests cannot be satisfied because the one mer bequests therein made, according to its made to Mrs. Bacon cannot be carried into language construed, as contended for by coun-effect and those preceding paid, for the obsel for appellants, thereby annulling every vious reason that the latter would have to
testator, and Mrs. Bacon would only receive, bequests were satisfied. This is mere con. what was left. In other words, according jecture. He did not say so, nor can we to the provisions of the will, the testator has gather from the language employed in the bequeathed the same property to different preceding paragraphs of the will, or any persons. Such a disposition, it is manifest, part of it, that he intended to say so, in the cannot be made or carried into effect. Where face of the explicit expressions employed in an irreconcilable repugnancy exists between paragraph 10. We may think it probable different clauses of a will, the posterior that such was his intention, but that is only clause prevails. 30 Ency. 685; 2 Woerner, conjecture, and contrary to the clear and § 415; 1 Jarman on Wills, 473; 1 Redfield unmistakable language of the will itself. on Wills, *p. 451; Covert v. Sebern, 73 Iowa, The intention of the testator expressed by 564, 568, 35 N. W. 636; Rogers v. Highnote, the words he has employed to express it 126 Ga. 740, 744, 56 S. E. 93; Martley v. must govern in the construction of his will. Martley, 77 Neb. 163, 108 N. W. 979; Frank Martindale v. Warner, 15 Pa. 471, 480; v. Frank (Tenn.) 111 S. W. 1119, 1121; Mur- Quincy v. Rogers, 9 Cush. (Mass.) 291, 295. fitt v. Jessop), 94 Ill, 158, 163; Foster v. Ste- This is the only safe rule. Unless this salvens, 146 Mich. 131, 139, 109 N. W. 265; utary rule is followed, the result will be, as IIoward v. Howard, 4 Bush (Ky.) 494, 497; in the case at bar, that courts will assume Armstrong v. Crapo, 72 Iowa, 604, 607, 34 N. the prerogative of making a will read so W. 437; IIeidlebaugh v. Wagner, 72 Iowa, as to express what they imagine the testa601, 601, 34 N. W. 439; Schouler on Wills, tor intended to say, or ought to have said. p. 546, note 1, subd. 7; Schouler on Wills, The duty of courts is to execute a will as $ 478; Underhill on Wills, $ 357; Covenhov- made, and not to make one for the testaen v. Shuler, 2 Paige, 122, 129, 21 Am. Dec. tor (Elliott v. Topp, 63 Miss. 138, 142); and 73. Redfield, above cited, says that this rule in the interpretation of a will the true inis generally adopted by the American courts; quiry is, not what a testator meant to exand Jarman, on Wills, says that it is un- press, but what do the words used express sparingly applied even when thereby the pri- (Couch v. Eastman, 29 W. Va. 784, 3 S. E. or devises are defeated in toto. The gener- 23). 2 Woerner, at section 414, succinctly ally accepted reason for the rule is that, in states the law relative to ascertaining the construing a will, the intent of the testa- meaning of wills clearly applicable to the tor at the moment of the execution of the case at bar, by saying: "The question in will is to govern; hence, the posterior clause expounding a will is not what the testator in case of repugnancy' prevails, because it meant, but what is the meaning of his expresses his later testamentary intention, words." As was well said in Sherrod v. and therefore furnishes the only safe guide Sherrod, 38 Ala. 537, at page 545: "Certainby which to determine his intention. Under- ly, the court cannot resort to conjecture hill on Wills, $ 357; Howard v. Howard, su- when the terms of the will are of intelligible pra; Murfitt v. Jessop, supra; Foster v. import. To do so would be to make a will Stevens, supra; Armstrong v. Crapo, supra. conforming to what it is supposed the tes
When conflicting and repugnant clauses of tator intended, not to search for the intena will are plain and unambiguous, words can- tion in the construction of what is said.” not be supplied for the purpose of expressing We can well say, as was said in St. Paul's the supposed intention of the testator; or, Sanitarium v. Freeman, supra: "There was in other words, a court cannot make a will no ambiguity in the language of the will, for a testator by supplying words supposed and in such case it must be construed acto have been omitted by him, in order to in- cording to the legal import of the language dicate an intention which the will itself does of the will, and the intention of the testanot express. 2 Woerner, $ 414; Pickering v. tor must be drawn therefrom, not the will Langdon, 22 Me. 413, 429; Simpson v. Smith, to be drawn from the intention.” The ob33 Tenn. 394, 396; Underhill on Wills, $ servation of Lord Mansfield, quoted in Pick361. Neither, in such circumstances, is ex- ering v. Langdon, supra, is certainly pertrinsic evidence admissible to add to, or tinent: "A court of justice may construe a substract from, its meaning. Arthur v. Ar- will, and from what is expressed necessarily thur, 10 Barb. (N. Y.) 1, 16; Bulkeley v. imply an intent not particularly specified in Worthington, etc., Society, 78 Conn. 526, 534, the words; but we cannot, from arbitrary 63 Atl. 351, 12 L. R. A. (N. S.) 785; St. Paul's conjecture, though founded on the highest Sanitarium v. Freeman (Tex. Civ. App.) 111 degree of probability, add to a will or supS. W. 443, 444; 2 Woerner, $ 421.
ply the omissions.” The will construed in The court has either ignored or misap- Gilmore v. Jenkins, 129 Iowa, 686, 688, 691, plied these rules. There is no ambiguity in 106 N. W. 193, 195, presents an excellent any of the clauses involved. They are plain example of when words will not be supplied and unambiguous; but, notwithstanding this for the purpose of expressing the probable fact, the court has assumed to supply words intent of a testator. By the fourth parain paragraph 10 for the purpose of making graph of the will, the testator says: "To it express his supposed intention, which, the my five daughters [naming them] I give court says, was to bequeath Mrs. Bacon all and bequeath the undivided one-fifth (of of his property after the preceding general lands particularly described].” The question
arose as to whether he intended to devise to From this conclusion it follows that the his daughters one-fifth each in the land de- general bequests made by the paragraphs of scribed, or to all of them one-fifth of such the will preceding paragraph 9 are nullities, land. Any one glancing at the paragraph and that the legatees therein named take would unquestionably say that it was alto- nothing thereby. The judgment of the disgether probable he intended to give each a trict court should, therefore, be reversed and one-fifth, and yet the Supreme Court, in the cause remanded, with directions to enter discussing the contention that for the pur- judgment in accordance with the views expose of expressing the intention of the tes pressed in this opinion. tator there should be inserted in the fourth paragraph the word "each" or "all" or "sev- CAMPBELL, J., concurs in this opinion. eral" or "joint," in order to make it intelligible, said: “We have gone as far as any court in permitting extrinsic evidence to aid
TAGGART V. FUGEL. in the construction of wills, but have never yet held that such evidence is admissible for (Supreme Court of Colorado. Oct. 4, 1909. Rethe purpose of changing a will, or to aid
hearing Denied Dec. 6, 1909.) in the making of a new one, one which the JUDGMENT (8 501*) — CONCLUSIVENESS-COL
LATERAL ATTACK. testator intended, but did not in fact, make.” The deed cuts no figure. The testator however erroneous, not appealed from, or ques
A judgment by a court having jurisdiction, refers to it merely for the purpose of ex- tioned in the manner and time provided by law, plaining why he bequeathed to his son only is nevertheless conclusive on all parties affected his watch and diamonds, and hence, it does thereby, and cannot be attacked collaterally. not aid in the slightest degree in curing Cent. Dig. 941; Dec. Dig. $ 501.* ]
[Ed. Note. For other cases, see Judgment, the irreconcilable repugnancy of the paragraphs involved. Aside from this, except in Appeal from County Court, City and Councase of ambiguity, the intent of the testator ty of Denver; Charles McCall, Judge. is to be gathered from the will itself. Au- Action by George Fugel against F. D. Taggustus v. Seabolt, 60 Ky. 156, 159; Gilmore gart. Judgment for plaintiff, and defendv. Jenkins, supra. 2 Woerner, at section ant appeals. Affirmed. 414, says, in substance, that as the statute
F. D. Taggart, pro se. requires wills to be in writing, it obviously precludes courts from ascribing to the testa
WHITE, J. The appellant, with others, for any intention not contained in the writ- executed a statutory appeal bond, removing a ten will; and, continuing, says: “It follows cause to the county court from a judgment that evidence which, in its nature and effect, rendered against certain defendants in a is simply explanatory of what the testator suit tried before a justice of the peace. Uphas written may be admitted, while none is on the trial of the case so appealed, judgadmissible which, in its nature and effect, ment was rendered against the parties apis applicable to the purpose of showing pealing. The defendants in that case failing merely what he intended to have written.” to satisfy the judgment, this suit was In Bulkeley V. Worthington, etc., Society, brought to recover the penalty designated in supra. it was said: “If the expressions of said bond. The only attempted defense is the will are free from ambiguity, they un-based upon certain alleged irregularities ocalterably disclose the intent of the testator, curring in the trial of the original case in and no extrinsic disclosure of it is in such the county court on appeal from said justice case permitted."
of the peace. The main opinion purports to adopt the Counsel argue that by arbitrary action of cardinal rule that-in construing a will the the county court in the original case, in exwhole instrument is to be considered. That acting certain alleged illegal fees as a conrule has not been followed, but the will has dition precedent to further appearance, the been changed by adding words assumed, appellant there was not heard on his moupon conjecture, to have been omitted, with tion for a new trial, and was not allowed the result that the will construed is one to take any exceptions to certain other alwhich the court has made for the testator. leged irregularities, nor appeal from the
Paragraph 10 and those prior which are judgment there rendered to this court. It involved are irreconcilably in conflict. None appears from the record here that the case of these paragraphs are ambiguous; on the in which the appeal bond was given was contrary, they are as explicit and clear as regularly brought before the justice of the it is possible for the English language to peace, and the subject of the action, as well make them; and hence, words supposed to as the parties, was within the jurisdiction of have been omitted cannot be supplied, nor that court, and that after trial there the can extrinsic evidence be resorted to for the case was properly appealed to, and lodged in purpose of reconciling the conflict, on the the county court. Thus the latter court had theory that the testator intended something jurisdiction, and the judgment by it renderhe did not express.
ed must be respected, until reversed, set aside, or annulled, as provided by law. A 14. DEPOSITIONS (107*)-OBJECTIONS-LEADjudgment by a court having jurisdiction, ING QUESTIONS-TIME. however erroneous, not appealed from, or objections to depositions
to be disposed of be
Under Mills' Ann. Code, $ 353, requiring questioned in the manner and time as pro-fore trial, an objection to questions in a deposivided by law, is nevertheless conclusive up- tion as leading cannot be made at the trial. on all parties affected thereby, and cannot [Ed. Note.-For other cases, see Depositions, be attacked collaterally. Cochrane v. Park- Cent. Dig. 88 309, 311; Dec. Dig. 8 107 ;*
Trial, Cent. Dig. § 189.] er, 12 Colo. App. 169, 54 Pac. 1027; Harter v. Shull, 17 Colo. App. 162, 166, 67 Pac. 911. 5. APPEAL AND ERROR (8 970*)-DISCRETION
OF LOWER COURT-ORDER OF PROOF. If the judgment was erroneous, if the trial The admission of testimony not strictly in court was arbitrary, and made unlawful ex- rebuttal is within the discretion of the court, actions of the defendants, or did anything and not reviewable, unless the court's discreprejudicial to their substantial rights in the tion is abused. progress of the trial, an appellate court-Error, Cent. Dig. $ 3851; Dec. Dig. § 970.*]
[Ed. Note.-For other cases, see Appeal and and in that case, or one of a reviewing or 6. APPEAL AND ERROR (8 701*)-INSTRUCTIONS supervisory nature was the place and the
-REVIEW-RECORD-EVIDENCE. way to correct it. The defendants in that Instructions will not be reviewed on appeal, case, who are principals in the bond here where the evidence relating to the matter in sued on, suffered judgment to go against ted from the abstract.
tended to be covered by the instructions is omitthem. They failed to appeal therefrom, or
[Ed. Note.-For other cases, see Appeal and seek in any way to relieve themselves of its Error, Cent. Dig. § 2933; Dec. Dig. $ 701.*] effect. Not only they, but certainly this appellant, cannot now question its regularity.
Appeal from La Plata County Court; Chas. McCarthy v. Strait, 7 Colo. App. 59, 63, 42 A. Pike, Judge. Pac. 189; Black on Judgments, $ 245.
Action by W. H. Chambers against the Perceiving no error in the record of this Greenlaw Lumber & Timber Company. Judgcase, and being precluded, by rules of law, ment for plaintiff, and defendant appeals. founded upon reason and the soundest prin- Affirmed. ciples of public policy, from inquiring into Pulliam & Lane, for appellant. P. G. Ellis, the procedure resulting in a judgment in a for appellee. case never brought into this court, the judgment here appealed from must be, and ac
MUSSER, J. This action was brought to cordingly is, affirmed.
recover for labor performed by the appellee Judgment affirmed.
and his two assignors, Ferguson and Collins,
in hauling railroad ties for the appellant. STEELE and BAILEY, JJ., concur.
The first assignment of error relates to the admission of the testimony of Ferguson, who testified that Collins hired him. This is
answered by the testimony of Collins, who GREENLAW LUMBER & TIMBER CO. v. testified that the defendant's general manaCHAMBERS.
ger authorized Collins to employ men to aid
in hauling the ties. In the second assign(Supreme Court of Colorado. Dec. 6, 1909.)
ment complaint is made of the admission of 1. MASTER AND SERVANT (8 80*)—ACTION FOR a deposition. The abstract recites that the SERVICES-EVIDENCE.
The admission of evidence of one of plain- defendant objected to the reading of the tiff's assignors, in an action for services in deposition, but states no ground or reason hauling ties, that he was hired by C. was ren- for the objection. The third assignment dered proper by the subsequent testimony of c; complains of the action of the court in overthat defendant's general manager authorized him to employ men to aid in hauling the ties. ruling defendant's motion for a nonsuit, and
[Ed. Note.-For other cases, see Master and the sixth assignment is that the court erred Servant, Cent. Dig. $ 116; Dec. Dig. $ 80.*] in rendering a judgment on the verdict. 2. APPEAL AND ERROR ($ 203*)-RECEPTION These assignments are based upon the alOF EVIDENCE-OBJECTIONS-SUFFICIENCY. leged insufficiency of the evidence to sustain
An objection to the reading of a deposition plaintiff's cause of action. It would not be cannot be reviewed, where no ground or rea- profitable to review the testimony. It is son for the objection was stated at the trial.
[Ed. Note.--For other cases, see Appeal and enough to say that there was sufficient testiError, Dec. Dig. 203;* Depositions, Cent. Dig. mony to show that plaintiff and his assignors § 339.]
were hired to haul the ties by the defend3. MASTER AND SERVANT (8 80*)—ACTION FOR ant, or by some one authorized by the de
SERVICES – EMPLOYMENT QUESTION FOR fendant to hire them, that the ties were JURY.
hauled by the plaintiff and his assignors, and Where the evidence was conflicting as to that defendant failed to pay for such haulwhether plaintiff and his assignors were hired ing. True, there was evidence to the conto work for defendant by some one having au- trary, but it was for the jury to determine thority, the question was for the jury.
[Ed. Note.-For other cases, see Master and the question upon conflicting testimony. Servant, Cent. Dig. $ 121; Dec. Dig. $ 80.*] In the fourth assignment it is said that