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by Tennessee. Supreme Court - 1901 - History
Ensley v. Ensley. of money, but asks the Court to determine this question for her as a matter of law. The bill prays the Chancellor to construe the will of ...
Reports of cases argued and determined in the Supreme Court of ..., Volume 105 By Tennessee. Supreme Court
Ensley v Ensley ENSLEY v ENSLEY Jackson June 20 1900
1] WILL Testator's intention The intention of the testator is the pole star in the construction of a will To ascertain this intention the Court looks to the whole will the circumstances and environments of the testator the state and condition of his family the size and extent of his estate as he believed it to be etc Post p 122 Cases cited Jones v Hunt 96 Tenn 372 Hottell v Browder 13 Lea 678 Thompson v Gant 14 Lea 313 Fraker u Fraker 6 I lav 350 Hoover v Gregory 10 Yer 444 Dixou r Cooper 88 Tenn 177 Fry v Shipley 94 Tenn 252 Old ham v York 99 Tenn 77 Henderson v Vaulx 10 Yer 34 Ganaway v Tarpley 1 Cold 527 Bunch v Hardy 3 Lea 547
2] SAME Trust arises upon precatory words when In order that precatory words in a will may raise a trust it is essential that it shall appear 1 that the words are upon a fair construction imperative 2 that the subject of the wish or recommendation be certain 3 that the objects or persons intended to have the benefit of the wish or recommendation be certain Post pp 119 120 Cases cited Anderson r McCullough 3 Head 614 Clark v Hill 98 Tenn 300 Woods u Woods 99 Tenn 60 Frierson u Presbyterian Church 7 Heis 6S4 Thompson v MeKissack 3 Hum e 31 Burks u Burks 7 I5ax 356 Anderson v Hammond 2 Lea 281 Alsup v Clarke 15 Lea 75 Hadley v Hadley 100 Tenn 446 Cruse v McKee 2 Head 1
3] SAME Same Example These precatory words contained in a will to wit I want to give my wife an executrix's power to give out of my estate before division as much as 815,000 of bequests to my kinfolks say to Melville Williams 85,000 or 810,000 in her discretion and the balance to some one else who may be needy does not raise a trust without affirmative action on the part of the APRIL TERM 1900 107
4] SAME Interest on legacies The general rule is that a legacy bears interest from the expiration of one year after testator's death even when its enjoyment is postponed to a future date But under the provision of the will in this case setting apart a fund and impressing it with a trust in favor of Williams for $5,000 to be paid before distribution the legacy bears interest from testator's death Post pp 124 125 Cases cited Darden n Orgain 5 Cold 21 i German v German 7 Cold 183 Mills v Mills 3 Head 708 Harrison v Henderson 7 Heis 348
5] SAME Children i hnrged wiOi sums advanced Iiy executrix for support without interest Where u testator provides for equal distribution of his among his two children and widow making the latter executrix and allowing her a support out of the estate the course of administration and then provides for his children thus I give her the executrixl five years to up my estate but in the meantime she must give to and Hattie each $250 per month to live on the children be charged on final distribution with all sums advanced this clause for their support but without interest Post pp 125 129
6] SAME Widow takes absolute estate when The testator's widow takes an absolute estate not charged with any trust in any event in favor of the after born child under the following provision to wit Should my wife give birth to a child in the next eight months and the child should live I will and devise to her she to provide for the child my residence together with all furniture of every kind carriage horses and carriages etc and after that one third of all my other property of every kind In the event the child should not live say twelve months then 1 give her my residence etc if she desires it but she must take of my property her one third less the value of the residence etc Post pp 129 130
7] SAME Child is pretermitted when And the child having been born as anticipated and not having been disinherited by the will nor any definite certain and enforceable provision made for it but one dependent on the will and bounty of the widow is pretermitted and under the statute succeeds to the same portion of the testator's estate as if he had died intestate Post pp 129 131 Code construed g 3925 S g3033 M & V 2193 T & S
8] SAME Method of ascertaining share of pretermUted nhlld In ascertaining the distributive share to which a pretermitted child is entitled dower homestead and year's support will not be excluded from the fund for distribution where the widow has waived these rights by taking a different provision made by the wi l Post pp 13I 1 3
9] SAME Same The amount or value of special or specific devises and legacies must be taken into account in computing the share of a pre terrcitted child and in raising a fund to pay the share of a pretermitted child each devisee or legatee must contribute in the proportion that the value of his devise or legacy bears to the value of the entire estate for distribution Post pp 132 133 Code construed g 3926 S g 3034 M & V g 2194 T & S
10] SAME Time allowed for winding up estate A provision in a will allowing the executor five years to wind np the estate does not fix an arbitrary limit upon the administration but is to be construed rather as an extension of the statutory period It does not require the removal of a competent and faithful executor because he has been unable to wind up the estate within the time allowed Post pp 133 134
11] ATTORNEY AT LAW Fees of not allowed out of general fund when An attorney who files a bill for some of the legatees and devisees against the executor and other legatees and devisees to obtain a necessary construction of the will and distribution and settlement of the estate will not be allowed fees for his services out of the general estate but must resort to the shares of his own clients where the defendants likewise had counsel and became liable for their fees Post pp 135 136
FROM SHELBY COUNTY,TENNESSEE
Appeal from Chancery Court of Shelby County JOHN LT SNEED Ch
GEORGE GILLHAM for complainant
HENRY CRAFT WRIGHT & WRIGHT and CAR KOLL & McKELIAR for defendants
This is a bill to construe the holographic will of Enoch Snsley deceased It was made and published July 7 1390 and the testator died November 18 1891 The will was probated in Shelby County November 24 1891 Mary LB Ensley the widow of the testator qualified as his executrix and has been acting as such ever since the probate of the will and the settlement of the estate is still pending The testator left one son Martin and one daughter Hat tie children of a former marriage and one son Enoch born within eight months after the will was made and before the father died The defendant Mary Beecher Ensley was born after the death of her father All the children are alive Martin Ensley was married to PAGE:111
Bettie S Ensley and Hattie Ensley after the making of the will married John Hodgson and is now his wife Martin Ensley had two children by his wife Bettie the complainants Laura S. and Martin Ensley Jr and Mr and Mrs Hodgson have child Harriet Ensley Hodgson and all of grandchildren are minors ---
The Last Will And Testment: Is in the following words and figures i make this my last will and testament I am of sound mind and body sufficient for the purpose I want my property of all kinds to be divided Between my wife Mary L Beecher Ensley my son Martin Ensley and my daughter Hattie Ensley as follows Should my wife give birth to a child in the next eight months and the child should live I will and devise to her she to provide for the child my residence together with all furniture of every kind carriage horses and carriages etc on the corner of Raybnrn Avenue and Broadway and after that one third of all my other property of every kind In the event the child should not live say twelve months then I give her my residence etc if she desires it but she must take of my property her one third less the value of the residence etc. PAGE:112
The remainder of my property I give to my son and daughter equally or say one third of the whole each
I appoint my wife sole executrix to execute this will and I give her power to sell and make title to any of my real estate particularly my: Ensley Plantation, On The Mississippi river in Southern; Memphis,Tennessee
I however except a tract of land of 111 acres more or less adjoining the city of Birmingham This land I don t want sold but I want it divided equally in value into three parts to my wife son and daughter my son and daughter's part to go to them during their lives and then to the heirs of their body but my wife's part to go to her during her life and should she have no child by me then I want my two children or their children to take her part Should either of my children die without heirs of their body living I want the other child or her or his children my wife's child if she has any by me to take equally of this land or say one third of this land so left I have spoken of all my property to be divided in this will so far without making any outside bequests I want to give my wife an executrix's power to give out of my estate before division as much as $15,000 of bequests to my kinfolks say to Melville Williams $5,000 or $10 000 in her discretion and the balance to some one else who may be needy I give her full power to spend what money she may desire in improving burial grounds and the erection of suitable monuments etc
Ensley v Ensley PAGE:113
I want no bond required of my executrix I have all faith that she will do everything that is right by my son and daughter I give her five years to wind up my estate but in the meantime she must give to Martin and Hattie each $250 per month to live on I don t want bond required of my wife as executrix Witness my hand and seal:
NAPOLEON HILT Witnesses
It appears that Martin Ensley was divorced from his wife Bettie Ensley and conveyed to WA Wheatly as trustee for her and their children Laura S and Martin Ensley Jr a third part of his share in the estate Bettie Ensley has since inter into marriage with Geo C Henry and ML Selden has succeeded Wheatly as trustee of the children upon the latter's resignation Mrs Bettie Henry formerly Enslev purchased another third interest of Martin Ensley Sr in his father's estate and is thus the owner of two thirds of the interest of Martin Ensley Sr and Mr and Mrs Hodgson have purchased and now own the other third interest of Martin Ensley Sr in the estate
Hattie Ensley at the death of her father was a minor dependent for her support upon her father with no means or estate of her own It appears that it required $3,000 per annum each for the support of both Martin and Hattie in the style and station in which they lived as members of their father's family at the time of bis death For a time the amount specified in the will of $250 each per month was paid by the executrix for the support of the children when the funds becoming exhausted and the estate involved the payments were not continued
The proof shows that the defendant Melville Williams is a nephew of Enoch Ensley and that the relations existing between the said Melville Williams and the said Enoch Ensley were most intimate and friendly that Enoch Ensley loaned Melville Williams money at any and all times and when he was away from Memphis he corresponded with him in the most affectionate terms
It is further agreed and stipulated that the executrix Mary LE Ensley did not during the five years in which ho was given to wind up her husband's estate exercise the discretion with which she was vested to give Melville Williams or any of the kinfolks of Enoch Ensley deceased any sum of money whatever and that now the said Mary LB Ensley declines to exercise this discretion in favor of giving the said Melville Williams or any of his kinfolks any amount of the money under The LAST Will And TESTMENT of Enoch Ensley Sr and that she likewise declines to exercise her discretion not to give them any sum of money but asks the Court to determine this question for her as a matter of law.
The bill prays the Chancellor to construe The Last will And Testment of said Enoch Ensley in the following matters:
1] What share does Enoch Ensley Jr the minor son of Mary LB Ensley take in his father's estate
2] Whether or not Melville Williams is a legatee in the estate of the paid Enoch Ensley
3] Whether or not Mrs Harriette Ensley Hodgson and Martin Ensley should have the sum of $250 per month from the date of the death of the testator up to the end of five years given to the executrix in which to wind up the estate and as to whether or not the sums actually paid and to be paid under this clause of the testator's will should be charged against them on the final settlement as part of their shares
4] Whether or not Mary LB Ensley as executrix of the estate of Enoch Ensley deceased is by the will vested with power to act as said executrix after the expiration of the five years given to her in which to wind up the estate
5 What interest in the estate has the minor Mary Ensley who was born after her father's death .
The Chancellor construed: The will and fixed the rights of the parties and the case is brought to this Court by several of the parties interested and it becomes necessary to pass upon the entire will and the contentions raised in regard to it The Chancellor hold among other things in substance
That Enoch Ensley Jr took no interest in his father's estate and that the only provision made or intended to be made for his benefit was such as he might derive through the provision made for his mother or through her That Melville Williams was entitled to a specific bequest of $5,000 with interest from November 19 1891 a year after the testator's death and that to the extent of $5,000 the legacy in no way depended on the discretion of the executrix but that she had the power to increase it to $10,000 that no trust was created in favor of said Williams or any other person designated as kinfolks and that tested from the standpoint of a trust the provision must fail for indefiniteness and that the provision was inoperative except so far as it resulted as a direct bequest or legacy to Melville Williams of $5,000 That the provision in the will directing the payment of $250 per month to Martin and Hattie Ensley to live on should be so construed as to make the same advances upon their shares before distribution and that the sums paid under this provision must in the final distribution of the estate be charged against these shares respectively
That Mary LB Ensley is by the will vested with power to sell all and any real estate of the testator and make good title to the same except the 111 acres of land near Birmingham Alabama which was directed to be divided and not sold and that her functions powers and duties did not cease at the end of five years from her qualification but would continue in her until she should be discharged by the Court.
That Mary Beecher Ensley being a posthumous child took the same interest jn the estate of her father as if he had died intestate which was designated as one fourth of the estate real and personal remaining after taking out the dower interest of the widow and her homestead interest and a child's share or one fifth of his personal estate her share to be made up by the other legatees and devisees under the will in pro jwrtion to their respective legacies and devises We proceed to examine the several assignments and questions presented without special regard to the order in which they are presented and first as to the rights of Melville Williams The provision of the will in regard to him is as follows I have spoken of all my property to be divided in this will so far without making any outside bequests I want to give my wife an executrix's power to give out of my estate before division as much as $15,000 of bequests to my kinfolks say to Melville Williams $5,000 or $10 000 in her discretion and the balance to some one else who may be needy.
The Chancellor: Held that the only rights that Melville Williams had were by way of a specific bequest and that this claim under the will tested from the standpoint of a trust fails altogether and that therefore the language of this clause of the will further than it operates as a direct bequest or legacy to Melville Williams for $5,000 must fail and become inoperative
The argument for Mr Williams is that the sum of $10,000 was set apart by the testator out of his estate and impressed with a trust in his favor and that $5,000 was absolutely devoted to his use and benefit and the discretion of the executrix extended only to the additional $5,000 In this connection it is conceded the balance of the $15,000 over the $10,000 not given to Mr Williams must fail because of indefiniteness but it is insisted that Mrs Ensley having failed to exercise her discretion by giving the $10,000 to Mr Williams a Court of Chancery would do so upon application
It is argued on the other hand that under the item of the will now under consideration no specific bequest was made to Melville Williams of $5.000 or any other amount nor was there a trust impressed upon $10,000 or any other amount in his favor capable of enforcement The language it is admitted implies that the testator desired that something should be dc ne for his relatives but it is said that it also implies that he in Ensley,Atended to leave it entirely to his executrix to give or not to give as in her discretion she might see proper It is noted that Melville Williams is not designated with specific certainty as the party to receive anything but the language used is $15,000 of bequests to my kinfolks say to Melville Williams $5,000 or $10,000 in the discretion of the executrix and the balance to some one else who may be needy It is added by counsel that it is difficult to surmise why if the testator desired to give Mr Williams $5,000 absolutely he did not do so by express direction and positive definite language and the contention is that the natural meaning of the language used is that the whole matter of the gift was left to the discretion of his wife in whom he appeared to have unbounded confidence and trust.
It is said by Pomeroy in his second volume of Equity Jurisprudence Sec 1016 In order that a trust may arise from the use of precatory words the Court must be satisfied from the words themselves taken in connection with all the other terms of the disposition that the testator's intention to create an express trust was as fully complete settled and sure as though he had given the property to hold upon a trust declared in express terms in the ordinary manner The intention of the testator is the main thing but how is that to be determined
In the first place the entire will should be considered in determining the intention and the precatory words sheuld not only be of such a character as to indicate that the testator intended a trust to be created but they must also be consistent with the other provisions of the will Secondly the words should be given their natural and ordinary meaning unless there is something to show that they were intended to be taken in a different sense In the third place discretionary expressions which leave the application of the property devised or bequeathed to the caprice or unlimited discretion of the beneficiary will not ordinarily be sufficient to create a trust and finally it may be said that while uncertainty in the subject or object of the devise is an object to be considered adversely to the trust such uncertainty will not necessarily be conclusive proof that no trust was intended to be created and if there is sufficient to enable the Courts to determine and carry out the intention of the testator they will do so It has been well said in our own State that a trust is created first if the words are so used as to be imperative upon a proper construction second if the subject of the recommendation or wish is certain third if the objects or persons intended to have the benefit of the recommendation or wish be also certain Anderson v McCul lough 3 Head 614 27 Am & Eng Euc Law p 38
It has been well said in our own State that a trust is created first if the words are so used as to be imperative upon a proper construction second if the subject of the recommendation or wish is certain third if the objects or persons intended to have the benefit of the recommendation or wish be also certain Anderson v McCul lough 3 Head 614 27 Am & Eng Euc Law p 38
The recent cases of Clark v Hill 14 Pickle 300 and Woods v Woods 15 Pickle 60 63 are cited as being in point and controlling many other cases are cited among them being Frierson v Pres by Church 7 Hies 684 Thompson v McKissack 3 Hum 681 Burks v Burks 7 Bax 356 Anderson v Hammond 2 Lea 281 Belle v lardy 1 Vesey 2 CO Randall v Randall 135 Ill 398 SC 25 Am St Repts 373 Howard v Canute 10iJ II S 725 Harrison v Harrison 44 Am Dec 364 377 v Knox 48 Am Rept 487 494 Le tines v Dardc n 5 Florida 74 Laurence v Cook NY 638 Williams v Mitbington 49 Md SC 33 Am Repts 286 Harper v Phelps 21 Conn 257 Foose v Whitmore 82 N Y 405 SC 37 Am St Repts 572 Oliffe v Wills 130 Mass 221 Mclntyre v Mclntyre 123 Pa St 329 SC 10 Am St Repts 529 Nichols v Allen 130 Mass 211 Ellis v Ellit 15 Ala 296 Polk v Pelk 10 Simmons 5 Ex parte Payne 2 Young & Coll 646 on Trusts Sees 1161 113 115 Pomeroy's Jurisprudence Sec 1015 and authorities there cited:.
The difficulty in the case is not so much in declaring the principles of law involved or in laying down a general rule as it is in applying the rule as recognized to the facts of the particular case inasmuch as each case must turn largely upon the phraseology used whether it is used technically or by a skilled draftsman or by an inexperienced one not employing apt language After all the intention of the testator must be the controlling feature and one cannot read this provision of the will in the light of the testator's environments without concluding that he intended his nephew to have $5,000 out of his estate before division and this executrix if she saw proper might increase it to $10,000 It has been wisely said The intention of the testator is the pole star in the construction of a will Jones v Hunt 12 Pickle 372 Hottcll v Browder 13 Lea 678 Smith v Bell 0 Peters 75 Colton v Colton 127 IT 8 300 Thompson v Gaut 14 Lea 313 Frdker v Fraker 6 Baxter 350 3 ililliken's Meigs Dig Sec 2740 sub secs 1 2 4 Kent 535 and 557 2 Story's Eq 10th Ed Sec 1074f Pritchard Sec 384
ENSLEY _VS_ ENSLEY PAGE:122
In the agreed statement of facts filed it is admitted this will was written wholly by Col Ensley that at the time he made it he considered himself a very wealthy man perhaps worth more than a million of dollars that Mr Williams was his nephew of whom as well as of his family he was very fond that he was on the most intimate relations with the said Melville Williams that they corresponded habitually that the testator took the deepest interest in the material affairs of Mr Williams that he loaned him money or gave him money and that outside of his immediate family there was no one that the testator held in more esteem or was nearer or dearer to him that he looked after the education of Mr Williams children one of whom was named for him that he visited him in his home near Nashville it being the Old Family Homestead of the Ensleys that he had a room kept for him there that he often expressed a purpose of providing for Mr Williams in his will.
The language used in this legacy is quite informal and it must he read keeping in that it is not that of a lawyer or skilled draughtsman It clearly implies that the testator to set apart out of his estate before division sum of $15,000 to go as bequests to his kinfolks This sum is not given to his executrix or one else but is set apart out of his estate a discretion was placed in his executrix to extent cannot be doubted whether it extended the whole bequest to Melville Williams or to $5,000 of it is a question of more difficulty But looking at the bequest from the of the testator and construing his inartificial language as best we may we are of opinion a trust was impressed in favor of Mr to the extent of $5,000 of this bequest and a discretion was vested in the executrix to increase it in his favor to $10,000 if she proper The provision for the balance of the $15,000.oo to go to some one else who may be needy is too indefinite for enforcement Anderson v McCullough 3 Head 617 Cotton v Cotton 127 US 309
The executrix having failed to execute this trust: So far as it is obligatory and pay over this bequest of $5,000 a Court of Chancery will require it to be done Anderson v McCullough 3 Head 614 Cotton v Cotton 127 US 309 Alsup v Clarke 15 Lea 75 Hadley v Hadley 16 Pick 446 Cruse v McKee 2 Head 1 1 Jarman on Wills p 680 et seq 27 Am & Eng Enc Law fist Ed 40 41
As to interest on it the general rule is that legacies bear interest from the expiration of one year after the testator's death Darden v Orgain 5 Cold 215 German v German 7 Cold 183 Mills v Mills 3 Head 708 And this is true when the enjoyment of the legacy is postponed by the testator to a future period Mills v Mills 3 Head 705 Harrison v Henderson 7 Ileis 348
The case of Harrison Henderson: 7 Heis 348 is in point In that case the wording of the will was l do set apart out of my estate in the hands of my executrix the sum of $4,000 to be held by my executrix subject to the following trusts etc Judge Freeman speaking for the Court on this point said This made Henderson testamentary trustee this fund as soon as it could be raised if on hand at the death of the old man If it on hand then he would have immediately the trustee to hold the fund and its accumulations until the time when it could be paid to the complainant at the death of her husband We think it clear that this legacy bears from the death of the testator as his certainly was that it should accumulate The setting apart by his will shows the intention to that it should take this direction from the when the will took effect and not be payable the end of the year as is the general rule in cases of pecuniary legacies.
We are of opinion: Therefore that under the rule in the last stated case Melville Williams is entitled to be paid this legacy of $5,000 and interest oui of the estate from the testator's death before a distribution or division is made but subject to its contribution to the shares of the pretermitted children as hereafter declared
As to the provision in the will relating to the bequest of $250 each per month to Martin and Hattie Ensley it must be considered wholly from the standpoint of arriving at the real intention of the testator To do this we must look to the whole will the circumstances of the testator the state and condition of his family the size and extent of his estate as he believed it to be and read the provision in the light of all these facts and environments Hoover v Gregory 10Yer 444 451 Dickson v Cooper 4 Pickle 177 Fry v Shipley 10 Pickle 252 Oldham v York 15 Pickle 77 Henderson v Vaul 10 Yer 34 Gannaway v Tarpley 1 Cold 572 Bunch v Hardy 3 Lea 547
We think it was the evident original intention: The testator to divide his property into three shares and to give one to his son one to daughter and one to his wife But in view the probability of the birth of a child and the purposes of a home the residence furniture carriages horses etc were added to the share designed for the wife He mt kes his wife his executrix and his estate being large and of mining interests slow of realization he it proper to provide that she is to have years in which to wind it up instead of the years and six months prescribed by law but was mindful that in the meantime there should be a fund out of which his children could receive their support and defray their current expenses The provision under consideration was evidently made to meet this condition and it was it appears upon the scale they had been accustomed to spend money for their support while the father was alive He says nothing charging the payments against their shares We think the most natural construction of the language employed under the circumstances is that these expenses were to be paid out of the estate and as a charge upon it until such time as the estate could be divided and the children receive their portions in severalty He recognized the fact that the children must he supported and maintained during that time and that his wife and executrix would have no power or authority to advance such support unless it was conferred by his will and but for this or some similar provision these children would for five years have been without means of support.
The provision is not an advancement in the sense of being a gift during the life of the parent in anticipation of what the children would receive on the death of their father for it was not to be paid to them until after his death and then only for their maintenance and support It is a general rule recognized in many cases that money provided for education is not to treated as an advancement and a fortiori money provided for support and maintenance is not to be so treated 2 Williams on Executors 7 Am Ed 895 6 star p 1291 Pritchard on Wills Sec 771 White v Moore 23 SC 456 Estate of Riddle 19 Penn St 431 Connor v May 3 Strob Eq SC 185 Boles v Winchester 13 Bush 1 Fcnnall v Henry 70 Ala 484 SC M Am Rep 8S Bradshaw v Can nada 76 XC 4 45 Such expenses as education and maintenance are incurred in the discharge of parental duty during the life of the parent-- Bruce v Griscom 70 KY 612 Cooney v May 3 Strob Eq SC 185 190 Sanford v Sanford 69 Barb 293 Miller's Appeal 40 Penn St 51 SC 80 Am Dec 55 But while these cases are somewhat analogous to the one at bar they are not conclusive
The sums directed to be paid in this case are not in any sense advancements: But they are simply the current expenses of his children after his death and pending the winding up of his estate and until such time as they might receive their separate shares upon a division of the estate which the testator assumed would take five years So the question still remains Shall these amounts directed to be paid to Martin and Hattie be charged up against their shares upon the final distribution although in the first instance they are to be paid out of the general estate We think that the conclusion of the Chancellor as to this feature of the case is correct It was evidently the expectation of the testator that his wife having his estate in her hands would take out of it from time to time enough for her maintenance and support during the time she was engaged in winding up the estate Otherwise there is no provision for her support and maintenance during that time But the children Laving none of hia estate or of their shares in their hands until the final distribution he provided they should be paid $250 per month by the executrix for their maintenance during that time and that equality was preserved which the testator desired and in order to maintain and continue equality it is necessary to charge the amounts received by each on his or her shares respectively upon the final division and distribution but without interest.
APRIL TERM 1900 PAGE:129
We are of opinion that Enoch Ensley Jr.: Must be regarded as having been pretermitted by the will as well as his posthumous sister Mary Beecher The only reference made to him is that in the event of his birth his mother should provide for him but the only means given her out of which to make such provision is the residence furniture carriages and horses and even these are not given for that express purpose While the value of these is not definitely shown it is evident they are not the equivalent of a share in the estate and we think it apparent that the testator intended thereby to provide a home for his children of the first and of the second marriage as ivell as his wife The child is only mentioned as it were incidentally as a probability in the will and the only provision for him is in the parenthetical clause she to provide for the child Now under the language used we are of opinion the wife took her share including the residence furniture carriages and horses as her own and she could dispose of them as she saw fit [21 P 9] and there was no obligation on her to provide for the child except so far as her own love or sense of duty might prompt and that not out of the estate but out of her share in it and the shares of the other children would not be affected thereby This is not a definite fixed enforceable provision for the child and he must therefore be treated as pretermitted in the will Burns v Allen 9 Pickle 149 There is no specific definite obligation fastened on the mother and no trust imposed on the estate in favor of the child and at most the provision is a mere statement that the mother will provide for the child The testator does not directly or inferentially disinherit him but indicates solicitude for him He does not use any such expressions as under the statute would disinherit the child and he must take therefore as in cases of intestacy The statute Shannon 3925 provides A child born after the making of a will either before or after the death of a testator not provided for nor disinherited but only pretermitted in such will and not provided for by settlement made by the testator in his lifetime shall succeed to the same portion of the testator's estate as if he had died intestate
The statute contemplates an enforceable definite and certain provision and not one dependent on the will or bounty of another There is no serious question made but that Mary the posthumous child must be treated as pretermitted and entitled to take under the statute as if the father had died intestate and in our view Enoch must Ix placed on the same footing .
A very difficult question: Is the basis which these children's shares shall be estimated The statute says they shall take the same as if the father had died intestate The application of this provision would require the widow's dower homestead and year's should first be excluded from computation of aggregate estate and an eqnal share in the remainder be given to the pretermitted children But the widow has not taken dower and homestead or other interest und r the law but on contrary has taken under the provisions of will If the dower homestead and year's are excluded from the estimate it is said it be only on the theory that they go to the widow But it is evident a widow cannot be to take dower and homestead or either of them but may elect to take under the will as has done in this case not only so but she renounce and disclaim all right to dower homestead or other interest that the law gives as widow in the estate which are to be paid primarily out of the estate and leave the whole of it for division and in the opinion of the majority of the Court this is what has been---
done in this case and the two pretermitted children are entitled to take as if there had been no will and the widow had renounced her right to dower homestead and year's support in the estate that is each takes one fifth of the entire net estate As to how these shares shall be made up presents also a question of practical difficulty under the facts in this case The statute provides Shannon 3926 Toward raising the portion of such child the devisees and legatees and other heirs shall contribute out of the part devised or bequeathed to or settled on them by the testator in the proportion borne by their respective devises legacies or settlements to the whole estate of the testator.
The Court is of opinion: That in order to determine the shares of the pretermitted children the net estate after payment of debts and expenses must be treated as a whole embracing in this whole the residence furniture carriages and horses given to tbe widow and the special legacy to Williams and the pretermitted children will be entitled to take with the widow and other children one fifth of this aggregate sum as his or her share But the widow and two older children and Williams must raise their shares out of their legacies and devises in the proportion which their portions bear to the whole estate so that the charge upon the widow's share will be increased proportionately by the value of the residence furniture carriages and horses and to the extent that her share is thus burdened by an increase of charge the effect will he that the shares of the older children and Williams will be proportionately relieved and it will result that the shares of the pretermitted children will be greater than those of the other two because the latter can have no interest in the residence carriages horses etc and the Williams legacy while all of these are to be computed and taken into estimate in fixing the shares of the pretermitted children under the law.
[The Court] We can see no reason for removing the executrix from her office after the expiration of the five years limit allowed by the will to wind up the estate The record shows that she has been very energetic in discharging her duties and the estate is not yet wound up The testator wns largely engaged in mining operations when he died and his estate consisted of such assets as could not be realized on without delay and taking advantage of market conditions Indeed the estate may be said to have had a speculative and uncertain value depending largely upon the iron market which became so depressed as at one time to justify proceedings to wind up the estate as insolvent To have a change of administration now would but entail confusion and loss No reason is given for her removal No desire is expressed for it so far as we can see The provision of the will does not fix an arbitrary limit beyond which the administration could not extend if necessary but the five years provided for by the will was intended as an enlargement of the time allowed by law the testator recognizing that the condition of his estate would at least demand that extension This provision must under all the facts be treated merely as an expression of opinion on the part of the testator that the estate could not be wound up until that lapse of time when distribution and division might be made but that object not having been accomplished within the time it is necessary and proper for the executrix to continue in the exercise of her duties for a longer period But it is not meant by this to bold that she may delay the distribution of the estate any longer than is necessary for its proper administration but such distribution should be made at such times and so often as may be practicable and expedient and as rapidly as the condition of the estate may warrant and justify leaving only such matters for future administration as may require time for proper disposition and handling.
As to the matter of counsel fees for complainants attorneys The bill is one to construe The Last Will And Testmdent of Enoch Ensley and determine the rights of all persons interested therein inter sese The rights of all parties are Involved and the will must necessarily be construed It is said complainants who have filed this bill are only portion of the parties interested The widow executrix who represents the entire estate not bring the bill but is a defendant to it.
PAGE:135 JACKSON: ENSLEY _VS_ ENSLEY
The complainants claim 1he largest interest in: The largest interest the estate and larger than the Court them to be entitled to It is said that bill has heretofore been filed to construe the will and that counsel fees have already been and paid in that The suit referred to was filed by a creditor on behalf of himself and other creditors and was for the purpose administering the estate as insolvent and a time when it was with good grounds believed to be so It appears that while was a broad prayer that the Court would the will in all respects it was never in case construed as to any of the matters in the present cause The condition of the estate has materially changed The lapse of time and vicissitudes of fortune have completely changed the status of the estate It is no longer an insolvent estate in which the rights of creditors are involved but it is a solvent estate with a surplus for distribution of perhaps a Quarter of a million dollars The suit was a necessity for all parties It could and should have been brought by the executrix and in that event her counsel fees would have been allowed her no doubt But inasmuch as the parties other than complainants have also to employ counsel to represent their interests and they incur fees it would not be equitable or proper to pay counsel fees representing one interest and not to pav others as vitally if not so extensively interested.
The opinion of the Chancellor: Will be reversed and modified as herein indicated and in all other respects aHirmed except that the entire costs of the cause will bo paid out of the estate and the cause is remanded for further action.
PAGE:135 APRIL TERM 1900;ENSLEY _VS_ ENSLEY
SPECIAL DISSENT:By WILKES J
With all due deference to the opinion of the majority;
I do not concure with them upon the basis for estimating the shares of the pretermitted children I think the statue lays down a plain imperative rule to be applied in all cases and that is that the pretermitted child takes the interest he or she won Id have taken if the deceased had died intestate and the rule aiid basis is the same whether the widow takes her dower and homestead and year's support and distributive share or does not take them The basis is fixed by the statute without regard to what the widow may elect to do and it is only under the statute and according to its terms that the pretermitted child can take anything I am of opinion therefore that the true rule is that in estimating the shares of such pretermitted child the value of the dower homestead and year's support should be excluded and not treated as a part of the aggregate fund in which the child may share If the pretermitted children receive any benefit from the relinquishment of dower homestead and year's support it is not under the statute nor by virtue of its provisions nor out of the testator's estate but from the widow's relinquishment and bounty and out of her share and interest in the testator's estate under the law The value of the widow's share as legatee does not stand on the same footing as her dower homestead and year's support as she takes that on a division with the children and not as a primary charge out of the estate before division.
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