March 19, 1935.
The opinion of the Court was delivered by Being unable to concur in the opinion by Mr. Associate Justice Bonham, I beg to submit the following reasons for my difference of views:
The facts in the case are fully stated by Justice Bonham, and further recitation thereof is unnecessary.
The meat of the whole case is admirably summarized in the last paragraph of the decree of Judge Shipp, which is as follows: "From a reading of the whole will, the inference is inescapable that the testator intended to treat the proceeds of his insurance policies as a fund entirely apart from the remainder of his estate and that, when he referred in paragraph 1 to `cash and securities' standing in his name at the time of his death, he had in mind cash and securities other than the proceeds of the insurance. To construe paragraph 1 of the will as referring to the policy payable to the estate, as the plaintiff contends should be done, would destroy the whole scheme of the will, for under that construction the only insurance money to which paragraphs 2, 3, 4 and 5 of the will could refer would be the proceeds of the policies payable to the mother, and no part of which could have been paid over to the plaintiff except for the voluntary act of the mother in surrendering the funds to comply with the testator's wishes. And such a construction would have the effect of making paragraph 5 of the will legally meaningless, since there would be no `balance of said insurance money' upon which it could operate." *Page 302
That Judge Shipp has reduced these somewhat ambiguous relevant portions of the will to a clear and logical interpretation seems entirely convincing. When it is remembered that the whole controversy centers around the disposition of the insurance money, it becomes necessary only to understand fully what the testator meant by the language in paragraphs 2, 3, 4 and 5 of the will.
These paragraphs treat entirely with the insurance money. It is treated as a unit. Paragraph 2 merely apprises the executors of the number of policies on the life of the testator and the respective beneficiaries. This is nothing more than an identification or inventory of the policies. The request to the mother to pay over the amounts realized on the policies payable to her so that such amounts could be treated in the same manner as the funds realized on the policy payable to the estate was but to ask her to do the thing absolutely necessary to get this fund into his estate, along with the other insurance fund already there.
It is hard to conceive of any reason why funds derived from the policies payable to the mother should be treated or disposed of in a way different from that derived from the policy payable to the estate. No reason appears in the will, and the Court should not attempt to create one. And when, in the immediately succeeding paragraphs, the testator, after having used language which it seems must clearly mean that he intended all the insurance money to be treated as a unit, makes a distribution of the proceeds from "said insurance money" which seems extremely liberal to those who couldnot have benefited therefrom but for the mother's generous concession to her son's request, and which leaves the mother with but a moderate portion out of the entire amount, it would be laying a harsh hand by the law upon the head of the trusting parent to say that, whereas she had surrenderedall, she must fall victim to a stretch of the Court's imagination and be satisfied with a pittance. For let it be kept in mind that under the policies she had an estate of $17,622.41 *Page 303 in her own legal right. Would a considerate son require or request her to surrender this comfortable sum in exchange for a mere $2,622.41?
In his able opinion the learned Associate Justice, who would sustain the claim of the appellant, says that Judge Shipp "loses sight of the fact that the will makes generous provision for the mother in lieu of the insurance fund which she surrendered." This observation can be based only on the assumption that the lands and other properties mentioned in paragraph 8 of the will and devised to the mother are equal in value and returns to the money derived from the insurance policies payable to her. The record is entirely silent on these values. Somehow, this impresses us as significant. For, had these devises to the mother been of such yielding value as a corresponding value in cash, may we not reasonably assume that such information would have been revealed at the trial? And, on the other hand, the Court is entirely safe at this time in assuming that, in the absence of any revealed peculiar value in these properties, the definite depression in values of, and returns from, lands and securities of this kind has left its mark on the properties in question.
Hence, it would appear that the wife who gets a comfortable amount in cash in lieu of lands and stocks may reasonably be classed as a "child of fortune" rather than a victim of discrimination.
This opinion being concurred in by a majority of the Justices, it becomes the judgment of the Court, which is that the judgment of the Circuit Court is affirmed.
MESSRS. JUSTICES STABLER and CARTER concur.
MR. JUSTICE BONHAM and MR. ACTING ASSOCIATE JUSTICE PHILIP H. STOLL dissent.