Lewis v. Atkins

DISSENTING OPINION

Royse, J.

While I agree generally with the principles of law stated in the majority opinion, I cannot agree with their conclusion in this case.

I agree with the following statements in the majority opinion: that the devise of the home and residence included the quarters over the garage which is the subject of this litigation; that the questioned provision does not give appellants a life estate, and that a consideration of the whole will clearly indicates testatrix clearly understood the effect of precatory words and how to employ them when she intended to vest discretionary powers in her executors or trustees. She did exactly this in several items of her will. The last sentence in Item Six of her will is a striking example of how she used such expressions with reference to these appellants and others not parties to this action. It is as follows:

“I authorize my executors to keep such of the above help in my home as they deem necessary, permitting them to live there rent free, and pay them such salary as may be suitable to their respective duties.”

*631Thus, in unequivocal terms, she authorized her executors to, at their discretion, permit appellants to work and live in “her home” and to pay them appropriate salaries for their services. Here she used entirely different phraseology than in the provision before us in this case.

I agree in particular with the following statement in the majority opinion:

“The effect of the use of the precatory words in wills is the subject of numerous decisions by the courts of nearly all the states of the union and out of them there seems to have emerged considerable confusion but no general principle or rule applicable in all instances further than the proposition, from which there can be little dissent, that such words must be given the effect the testator intended them to have. In determining the question of the testator’s intention, the generally accepted rules of construction must apply and it will be presumed that he used precatory words in their ordinary and usual sense unless there is something to show that he intended that they be given a different meaning. Mitchell v. Mitchell (1895); 143 Ind. 113, 42 N. E. 465.” (My emphasis)

In that case the facts stated by the court are as follows:

“The appellant, William C. Mitchell, is a son of Samuel M. Mitchell, by his first wife. The appellee, Ann Mitchell, was the second wife, and is now the widow of said Samuel M. Mitchell, by whom she had six children, having had a son, William H. Eslinger, by a former marriage.
“The appellant instituted this suit to enjoin the appellee from making gifts and other disposition, to said Eslinger, of the property devised'to her by the said Samuel, and to declare the existence, under the terms of said will, of a trust in such property in his favor.
“The circuit court sustained appellee’s demurrer to the appellant’s complaint, and the correctness of that ruling depends upon the proper construction of said will,” . . •

*632The pertinent portions of the will are stated as follows:

“ ‘To my beloved wife, Ann Mitchell, who during all of the long period of our marriage life, has been a true wife and loving companion, and whose industry, economy and help have, largely conduced to the acquisition of the estate which I now own and enjoy, I will'give to her the homestead,’ describing it, ‘to have and hold the same in fee simple.’ Then follow two special bequests to her of personal property. Continuing, it is provided that ‘In addition to the above I will and bequeath to my said wife, Ann Mitchell, one-third (Ys) of all of my real estate, other than that above mentioned, wheresoever situated, to have and hold in fee simple, and also one-third of my personal property and estate of every description and kind whatever, all of the above last mentioned bequest of land and personal to be subject, however, to the conditions herein imposed.’ ”

The will then provided, in other clauses, that two-thirds of his property was to be divided equally between his seven children and that in the event his wife died before he did that the property willed to her would go to his children. The will, after naming executors, etc., contained the following clause:

“ ‘It is my request and wish that in the event that my wife survives me, that she will, during her life, make such provisions by will or otherwise, so that at her death my son, William C. Mitchell, may share equally of the estate and property herein willed to her with my other children.’ ”

In considering the provisions of the will to determine the testator’s intent, the court said:

“By the language in which the devises and bequests are stated, disregarding for the moment any of the subsequent expressions claimed to constitute conditions and limitations, the appellee is given, in apt form, the highest title known to the law. By *633the words of the will, she is ‘to have and hold .... in fee simple.’ Excepting the two-thirds of the homestead and the two nominal bequests, the fee in one-third would have been her allotment without a will and by the rule of justice underlying our statute of descents. By the testator’s declared recognition of her assistance in ‘the acquisition of the estate,’ and the loving companionship she gave him for so many years, we are inclined to the view that he did not desire to provide less than she would have received without his will.”

It is to be noted the questioned provision was an entirely separate clause from the one devising the fee title to the widow.

In the case of Fenstermaker v. Holman (1902), 158 Ind. 71, 62 N. E. 699, the provision of the will before the court was as follows:

“I further direct and will that my beloved wife, Sarah Ann Reeves, shall have all my real and personal property that I may be possessed''of at' the time of my death (she selling so much of my personal property as she may think necessary to. be applied on the payments of my debts) ; the real estate, being described as follows, to wit: . . .; and I further direct that the said Martha M. Fenstermaker be paid the sum of $200 out of that part of my estate which I herein will and devise to my beloved daughter Cyrena Ann Holman. This said sum bequeathed to her in order to make them share my estate share and share alike. I further will and devise to my beloved daughter Cyrena Ann Holman the following described real estate, to wit: . .

The question was whether the widow took a fee or a life estate. The court then said:

“It will be observed that the interest to be. taken by the widow, Sarah Ann Reeves, in said real estate, is not defined in the will. It may be that the devise to the widow, standing alone, without congidering the subsequent provisions of the will, *634would be construed to give her a fee in said real estate; but wills are not to be so construed. Such construction would be the result of presumption or inference as to the intention of the testator, be-' cause' he has not said in express terms that he devised said real estate to his widow ‘in fee simple,’ either in apt words or by the use of legal words of inheritance. The whole will must be considered to ascertain the intention of the testator. In clear • and distinct terms the testator provided that at the death of his wife the real estate devised to her shall go to his daughters* describing the part given to each daughter. Said testator also directed ‘that said Martha M. Fenstermaker be paid the sum of $200 out of that part of my estate which I herein will and devise to my beloved daughter Cyrena Ann-Holman. This said sum bequeathed to her in order to make them share my estate share and share alike.’ Considering the whole will, it is evident that the testator did not intend to give his widow more than a life estate in said land.”

In that case, as in this case, the questioned provision was contained in one clause and related to the same property. .

in 54 Am. Jur. 65, §56, it is stated:
“The crucial test under the modern rule as to the creation of a trust by precatory words is whether the wish, desire, or recommendation expressed by the trustor is meant to govern the conduct of the one to whom it is addressed, or whether it is merely an indication of that which he thinks would be a reasonable exercise of the discretion of such person, leaving it, however, to the person to exercise his own discretion.”

It appears to me the majority have completely ignored the general rules which they announce should be. our guide in cases of this kind.

The questioned provision is as follows:

“Also it is-my wish that Henry Lewis and his wife, Gertrude Lewis, be permitted to live in their *635quarters over the garage on said premises, as long as they desire so to do, rent free;” (My emphasis)

The foregoing is the concluding paragraph of Item 1 of the second codicil of the will. It relates solely to the disposition of the testator’s home. It seems to me the majority opinion completely ignores the ordinary and usual meaning of the word “also” in the above provision. This word is defined in Webster’s New International Dictionary as follows:

“2. In the same manner (as something else); likewise.
“3. In addition; as well; besides; too.
“Syn. — More, moreover, further, yet, similarly. ALSO, TOO, LIKEWISE are used in adding one proposition or consideration to another. ALSO adds to a statement something that may be affirmed equally with what precedes ;”

Under this item of the will she provided for the disposition of the fee title to this property. She then added a provision that can be affirmed equally with that disposition. It is unquestioned she had the right to do this. There is absolutely nothing in this provision from which it might even be inferred that the privileges she so clearly granted appellants would be subject to the discretion, whim or caprice of either her executors, trustees or the Mutual Service Foundation. The only persons who were granted any discretion in this matter were the appellants. I believe that under the generally accepted rules of construction applicable to cases of this kind the testatrix unequivocally gave appellants the right and privilege to occupy those premises as their personal home and residence so long as they desired so to do. For these reasons I believe the judgment should be reversed.

Note. — Reported in 105 N. E. 2d 183.