Fielden et ux. v. Ballenger et al.

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Category: Courts & Councils

Fielden et ux. v. Ballenger et al.

No number in original

Court of Chancery Appeals of Tennessee

Reported at 35 S.W. 758

October 16, 1895, Decided

SUBSEQUENT HISTORY: Affirmed orally by supreme court, October 19, 1895.

PRIOR HISTORY: Appeal from chancery court, Jefferson county; John P. Smith, Chancellor.

Bill by Richard H. Fielden, executor, and wife, against the children and grandchildren of Aaron Ballenger, deceased, for the construction of testator's will, and for an order of distribution. From a decree as prayed, Elkana Ballenger and others, in part, appeal. Affirmed.

DISPOSITION: Affirmed.

HEADNOTES: WILLS--ADVANCEMENTS--ELIMINATION OF SHARE IN ESTATE--CONSTRUCTION.

A testator who had had 10 children, 3 of whom were dead, directed his estate to be "divided into ten shares, to be shared in alike by my son W. B. and his children, H. B. and his children, E. B. and his children, after accounting to my estate for the land sold for his benefit to M. R. T., which is hereby charged to his share of my estate, and the executor shall deduct the same, and divide it equally with the other shares.  .  .  ." The devise continues, "one share" to each of the remaining children, or the representatives of those deceased. By a codicil it was provided that, in consideration of advancements, testator's son E. B. should "have no claim, by said will or otherwise, to any portion of the real or personal estate that I may die possessed of, but the same shall be divided equally among the other beneficiaries named therein, according to the provisions of this my will."

Held, that the testator meant the one entire share willed to "E. B. and his children" to be charged with the advancements, and, by the codicil, to eliminate the share to him and his children.

COUNSEL: Washburn, Pickle & Turner, for appellants.

Park, King & Park, for appellees.

JUDGES: BARTON, J. WILSON and NEIL, JJ., concur.

OPINION BY: BARTON

OPINION: BARTON, J.

The question in this case is as to the proper construction of the will of Aaron Ballenger. The bill was filed by Richard H. Fielden, who was executor under the will, and his wife, Cordelia, who was one of the devisees and children of Aaron Ballenger, against the other children and grandchildren, his heirs, devisees, and their representatives; setting out the will, and asking for its proper construction and the distribution of the estate under it. This will, after a contest, had been properly probated. This will is as follows, with codicil and indorsements attached:

"Last Will and Testament of Aaron Ballenger, Dec'd. I Aaron Ballenger of the county of Jefferson and state of Tennessee being admonished by the infirmities consequent of a long life that I cannot expect to live many more years, but of a sound and disposing mind and memory, do make and publish this my last will and testament, hereby revoking all other wills by me made at any time.
(1st) In view of my age I feel it is too great a tax on my strength to attend to my manifold domestic duties, and desiring to rest in quiet in my declining years, I therefore appoint my son-in-law, Richard H. Fielden, the executor of this my will, and hereby empower him in my name and stead to take charge of all my property both real and personal, and in my name and stead and for the benefit of my estate to manage the same by renting or leasing the real estate to the best advantage, by using any work stock or farming implements that I may have on hand in the connection with the renting of the same at a fair value to be paid out of the rents, to make such contracts as will bind the parties to farm the lands in first rate farm-like manner, to keep up the repairs of the fence, and to have land well cultivated in a rotation of crops of corn, wheat and oats, clover and grass, and in renting said lands to give the preference to such of my heirs as will take the lands, stock, &c., as do as good as a part of my estate as others who may wish to rent the land, to keep up such stock on the place as may prove profitable during my life, and to furnish me out of the proceeds of the land &c., my support as long as I live, and to market each year any surplus of grain or stock that there may be after the supporting of the wants of myself, and after paying himself a fair compensation for his service, to pay over any balance that may remain after the taxes and expenses are paid, to be paid to me, to be used by me for the benefit of my estate.
(2) It is my will that no one of my children sell any interest they may be entitled to in my real estate, unless the sale is made to one of my legal heirs. I desire that my children keep my lands, for homes for themselves and their children after them, and any sale made contrary to the above stipulation shall be void as to children after them making such sale.
(3) It is my will, after my death, that any just debt that I may owe, if any, and the expenses of giving myself a decent burial, and paid that my estate both real and personal, after a sale of the personalty, be divided into ten shares to be shared in alike by my son Wm. Ballenger and his children, Henry Ballenger and his children, Elkana Ballenger and his children, after accounting to my estate for the land sold for his benefit to M. R. Thomas, which is hereby charged to his share of my estate, and the executor shall deduct the same and divide it equally with the other shares, one share to my daughter Cordelia, wife of Richard H. Fielden and her heirs, one share, to Mary Ann Fielden wife of Wm. Fielden and her children, one share to the children of Sarah Jane Bales in the state of Arkansas, one share to Lavinia, wife of Aden Gray, and her heirs, one share to Amanda, wife of A. G. Wright and her children, one share to Orlena Mills' children, one share to the widow and children of my son Marion Ballenger. It is my will that if any of my children above mentioned die before the distribution having no children, that in such event their share shall be equally divided amongst my other heirs.
In testimony whereof I hereunto set my hand and seal the 9th day of Nov. 1891. Aaron Ballenger. [Seal.] Signed, sealed and acknowledged in our presence and we signed the same as witnesses in the presence of and at the request of the testator. Attest: J. C. Howard, H. D. Simpkins."
Codicil: "Since the foregoing will was written I have made an arrangement with my son Elkana Ballenger, one of the beneficiaries in said will by which I have advanced him an amount that he receives in full of all interest or demands that he might have under said will to share in the distribution of my estate, and he will therefore in consideration of said advancements have no claim by said will or otherwise to any portion of the real or personal estate that I may die possessed of, but the same shall be divided equally among the other beneficiaries named therein according to the provision of this my will.
In testimony thereof I have hereunto set my hand and seal, this the 24th day of Dec. 1891. Aaron Ballenger. [Seal.] Signed, sealed and delivered in our presence, and we sign the same as witnesses in the presence of and at the request of the testator. Attest: J. C. Howard, H. D. Simpkins."

The contest is between Elkana Ballenger and his children, on one side, and the other children and devisees, and is as to whether Elkana's children have now a part of the estate, or are cut off from participating in it. The bill charged, among other things, as follows:

"Complainants further show unto your honor that, in order to determine the right of the several parties hereto in and to the real and personal estate of said testator, a judicial construction of said last will and testament is necessary, particuarly to determine what interest, if any, is taken under said will by the grandchildren of said testator, whose parents, the children of said testator, are still living; also, whether restriction upon the sale of said land, as contained in the second item of said will, is valid and binding, and whether the children of the said Elkana Ballenger have any interest in said estate, or whether the codicil made to said will operates to cut off all interest of said children, as well as their father, in said estate. Complainants allege that such was the intention of said testator, but that the said Elkana Ballenger and said children are insisting upon a contrary construction of said will. Complainants further show unto your honor that during the lifetime of said testator he advanced large sums of money to said Elkana Ballenger, in addition to the tract of land mentioned in said will, conveyed on his account to M. R. Thomas, and that at the time said codicil was executed he then advanced to said Elkana Ballenger the sum of $222.50, which, added to the value of the tract of land conveyed to M. R. Thomas for his benefit, made up in value the full one-tenth share of said estate belonging to said Elkana Ballenger or his children. And, considering other sums which were advanced to said Elkana Ballenger by his father, he has received much more than his equal share of said estate. And complainants further insist that even if said codicil does not, in terms, cut off all interest that the children of said Elkana Ballenger might have under said will, yet they must be held to account for the entire advancement made to their father, Elkana Ballenger, before they are entitled to receive anything more out of said estate."

The decree of the chancellor was against them, and they have appealed, and assign errors here. The decree of the chancellor was as follows:

"R. H. Fielden and Wife v. Henry Ballenger et al. This cause was this day heard upon the bill, the answer of Elkana Ballenger et al.; the answer of the guardian ad litem of the minor defendants, the judgments pro confesso, except Elkana Ballenger, Mary Ballenger, W. N. Howard, Ida Howard, Hattie Ballenger, and Walter Ballenger; the copy of the will of Aaron Ballenger, exhibited with the bill; and the proof on file, -- from all of which the chancellor is of the opinion, and adjudges and decrees, as follows:

(1)  That the language used in the second clause of the will, expressing the desire of the testator that the lands devised be kept by his children for homes for themselves and their children, and declaring void any sale to others than testator's heirs, as to the children after them, -- that is, after his (testator's) children, -- shows such intention on the part of the testator as takes the bequest to Wm. Ballenger and his children, Henry Ballenger and his children, Elkana Ballenger and his children, Cordelia Fielden and her heirs, Mary Ann Fielden, Lavinia Gray and her heirs, and to Amanda Wright and her children, out of the general rule, and does not vest these several sons and daughters of testator with equal interests, as tenants in common, but vest in said parents life estates, respectively, in their children, which will open to admit the after-born children of such sons and daughters.

(2)  That the word 'heirs,' used in the third clause of said will, with reference to bequest to Cordelia Fielden and Lavinia Gray, in the light of the other parts and provisions of said will, should be construed to mean 'children,' and to create life estates in said Cordelia Fielden and Lavinia Gray, with remainders in their children, subject to open and admit after-born children.

(3)  That the bequest to Elkana Ballenger and his children, contained in the third clause of said will, was charged, in favor of other shares, with the price of the land sold M. R. Thomas, and that by the terms of the codicil the entire bequest was terminated and abrogated in consideration of the advancements then made, and said Elkana Ballenger and his children take nothing under said will.

(4)  That, by the first clause of the will, Richard H. Fielden was constituted an agent of Aaron Ballenger during his lifetime, and answerable to Aaron Ballenger, and any balance due from said agent would be an ordinary debt due said estate.
"Partition. That said estate be partitioned in nine equal shares, as follows: First, to Wm. Ballenger and his children; second, to Henry Ballenger and his children; third, Cordelia Fielden and her children; fourth, Mary Ann Fielden and her children; fifth, to the children of Sarah Jane Bales; sixth, Lavinia Gray and her children; seventh, Amanda Wright and her children; eighth, the children of Orlena Mills; ninth, to the widow and children of Marion Ballenger. And, for the purpose of partitioning said real estate, G. W. Moreland, the county surveyor of Jefferson county, T. W. Loy, and L. M. Dick, all good and lawful men, free-holders of said county, and disinterested, are hereby appointed commissioners to partition and allot the lands of which testator died seised and possessed of, and which passed under his will, to the respective parties, quantity and quality relatively considered, designating the several shares by post stones, marked trees, or other permanent monuments, and make report in writing, over their signatures, of what they do; describing the lands divided, and share of each of the nine children, or children of such children. And, if the commissioners find that exact partition cannot be made, they may make as nearly equal partition as they can, and charge the larger shares with the sums necessary to equalize them, and report the facts.
"Reference, Personal Estate. The master will hear proof, and take and state and account to the next term."

(1)  Construing together the second and third clauses, that by the language in the second clause, to wit, 'I desire that my children keep my land for homes for themselves and their children, and any sale made contrary to the above stipulation shall be void as to the children after them (making the sale), explains the bequest and the devise in the third clause, so that by the words, 'be divided into ten shares, to be shared in alike by my son Wm. Ballenger and his children,' etc., vested in the child of testator an estate for life, with a remainder in the children of the devisees, grandchildren of the testator, and so that Wm. Ballenger and his children did not take as tenants in common, and children born at the children's death will take; and so of other like bequests.

(2)  That the word 'heirs,' used in the devise to Cordelia Fielden and Lavinia Gray, looking to the whole will, should be held to mean 'children.'

(3)  That the bequest to Elkana Ballenger and his children was charged with the price of the land sold to M. R. Thomas, and that by the codicil the entire interest was cut off. The life estate of Elkana Ballenger was destroyed.

There is nothing upon which the remainder in his children can rest. * * *

"From the foregoing decree, so far as it adjudges that Elkana Ballenger and his children, Mary Ballenger, Hattie Ballenger, Nip Howard and wife, Ida Howard, and Walter Ballenger, have no interest in said estate, under the will construed, said parties pray an appeal to the next term of the supreme court for the state of Tennessee, to be held at Knoxville, second Monday September next, which is granted on their executing an appeal bond, or otherwise complying with the law; and, by consent, 30 days are allowed in which for them to execute an appeal bond, or otherwise comply with the law."

The only proof offered was that of complainant Fielden, and the deposition of one J. C. Howard. Fielden simply proves the names of the children and grandchildren, as recited in the bill, correct, and that he had correctly managed his trustee and executorship. Howard proves that Elkana Ballenger executed the receipt mentioned in the bill, which is as follows: "$222.50. Received, December 19, 1891, of Aaron Ballenger, two hundred and twenty-two dollars and fifty cents, in full of the amount agreed upon as in full of my share and all interest in his estate as provided by an addition to my will. E. Ballenger." The will was dated November 9, 1891; this receipt, December 19, 1891; the codicil, December 24, 1891.

The only question before us on the appeal, as prayed and granted, is: Were Elkana's children cut off by the will and codicil, as decreed by the chancellor? In our opinion, such was the intention of the testator. This is made manifest to us by the wording of the will and codicil, without the necessity for going into a learned discussion of the doctrine of estates, and the niceties and distinctions drawn by our law writers and found in our reported cases, which, of course, were not in the mind and contemplation of this old farmer, in making his will. He had had 10 children, 3 of whom were dead, and he directs his estate to "be divided into ten shares to be shared in alike by my son Wm. Ballenger and his children, Henry Ballenger and his children, Elkana Ballenger and his children, after accounting to my estate for the land sold for his benefit to M. R. Thomas, which is hereby charged to his share of my estate, and executor shall deduct the same and divide it equally with the other shares." The other seven shares he then devised: "One share to my daughter Cordelia and her heirs; one share to Mary Ann Fielden and her children, one share to the children of Sarah Jane Bales, one share to Lavinia, wife of Aden Gray and her heirs, one share to Amanda wife of A. G. Wright and her children, one share to Orlena Mills' children, one share to the widow and children of my son Marion Ballenger." We think it clear that the testator meant the one entire share willed "Elkana and his children" should be charged with the advancement he had made by the sale of land to Thomas for Elkana's benefit. He did not undertake nor intend that each grandchild should share alike in his estate, and be primarily considered, but divided his estate, by the number of his children, into ten shares. In the cases where the child had died, he willed the one share their father or mother would have taken, to them, as a class representing the father or mother, and without regard to their number. He looked upon the shares as ten, one to each child, or their representatives, primarily, and clearly, in our opinion, the one to Elkana and his children he evidently meant to be charged with this advancement; and, carrying the same idea in his mind, when he made the codicil, having paid Elkana the $222.50 additional, he meant to cut off this share, and divide the balance of the estate into nine shares, to go as he had theretofore directed in his will, -- to "the other beneficiaries named therein," -- his children, or their representatives. As we say, without discussion of any of the canons of descent, or rules of real property, we think this the clear intention of the testator, to be gathered from the will and codicil. This view, we think, is strengthened by a reference to the second clause of the will, which reads, "It is my will that no one of my children sell any interest they may be entitled to in my real estate, unless the sale be made to one of my legal heirs. I desire that my children keep my lands for homes for themselves and their children after them making such sales." Here the idea of making his children the primary objects of his bounty, with full control, during their lives, of the lands willed for homes for themselves, and for homes for their children after they are gone, with a limitation against selling so as to defeat the remainder to the children, otherwise than to one of his legal heirs, seems clear, and, taking the second and third clauses together, forces the conclusion that he held the share to each of the 10 in his mind, as first for his children, and then for their children after them, and that he intended, by reason of the advancements to Elkana, to eliminate the share to him and his children. When it can be done, the intention of the testator must prevail.

There is nothing in this view of the case that either conflicts with settled rules of property or construction. It is argued for the defendants that the second clause cannot be construed as indicating a life estate in the parent, as was done by the chancellor, because, if the life estate was in the parent and the remainder in the children, no sale made by the parent could defeat the remainder, and the clause would be meaningless which provides that the children shall not sell so as to defeat the children coming after; and it is said this means that no child shall sell his undivided interest in the share willed, but this seems to us a forced and strained construction.

The clause, we think, shows the idea of the testator that his bounty was first for his children, and that he looked on each share as one of which, as we have said, each child was to have full control during life, and even the right to sell the fee, if sold to one of his other children, and the words were put in to show the testator's intention to make, except in the one contingency of a sale to an heir, the devise to the children of a life estate, with remainder to the children of each. In no other view that we can see will the words, "their children after them," have any meaning or effect. But it is said, even if Elkana's interest were cut off, it does not follow that his children's were. But, as we have said, we think the testator held each of the ten shares as primarily going to the children, and then to the grandchildren, and looked on each share as one, without regard to the subsequent estates therein, and concluded to change the course of the share intended for Elkana and his children by paying or turning it over to him during the testator's life. On this conclusion our minds rest with satisfaction, without discussing or deciding whether the remainder to Elkana's children failed for want of the support of a life estate, or was accelerated by the elimination of his interest, and became a vested estate in fee to the children on the death of the testator. We simply conclude that the testator intended, on account of his previous advancement to Elkana, to eliminate this share, so far as he and his children were concerned. He willed them nothing. The contention of defendants' counsel would have more weight in the construction of a deed, when interests were vested, and a settlement was subsequently had with only one of the beneficiaries. But the will speaks only from the testator's death, and no interest had vested in Elkana's children, and the whole will must be looked to for the testator's intention. The case of Bunch v. Hardy, 71 Tenn. 543, 3 Lea 543, cited by both sides, is in accord with our conclusion. A very slight indication of intention that children should not take jointly is sufficient to enable a court to decree a life estate to a mother, with remainder to the children. See that case, and numerous authorities there cited.

WILSON and NEIL, JJ., concur