
    Garner v. Becton et al.
    
    
      (Nashville,
    
    
      December Term, 1947.)
    Opinion filed July 17, 1948.
    
      T. B. Passmobe, of Memphis, for appellants.
    No attorney for appellee.
   Me. Justice Buenett

delivered the opinion of the Court.

This suit calls for the construction of the will of Clara Taylor. Omitting the preamble and concluding clause of the will the disposing clauses are as follows:

“Item I. I will to Fannie Becton and Georgia Jones my household goods and my home at 2278 Marble Street; Memphis, Tennessee, to take possession of it after my death.
“Item II. I further declare that the above named persons share a part of this property with my cousin, Mary Mason Garner, as long as she lives, if she desires it.
“Item III. After the death of the three above named parties, I will the said property to my church, Springdale Baptist Church, on Hunter street in Memphis, Tennessee & said property not to be sold. ’ ’

This suit was filed by the named beneficiary under item II of the will against all other legatees, including the trustees of the named church, and the executrix for a declaratory judgment under the Declaratory Judgments Act, Code sessions 8835-8847. All parties were before tbe Court by service of process. No answer or defense was made. Tbe parties apparently were satisfied to be bound by tbe construction placed on tbe will without asserting any rights. The Chancellor was “of opinion that Item I of tbe will gives to Fannie Becton and Georgia Jones all of tbe property of tbe Testatrix, both real and personal, tbe real property in fee simple, and tbe personal property in absolute ownerships. Tbe latter proviso in Items II and III, in tbe opinion of tbe Court are not such clear and unambiguous changes or modification of same as to take away from Fannie Becton and Georgia Jones tbe gift already clearly made in Item I.”

It is a well recognized rule, universally in force, that tbe courts will endeavor to ascertain and enforce tbe intention of tbe testator, except where forbidden by positive rules of law. This intention is to be ascertained from a consideration of tbe will as a whole and not from its disjointed fragments.

In tbe first item of tbe will before us tbe testatrix willed to two named people her household goods and home. Tbe next item provides “that tbe above named persons share a part of this property with” the complainant. Tbe next clause or item provides that after tbe death of tbe three persons named in tbe preceding two items “I will tbe said property to my church, Springdale Baptist Church, on Hunter Street in Memphis, Tennessee . . . ”

We can see nothing ambiguous in the language used herein. Tbe intention of tbe testatrix seems clear. Construing these three items or clauses together it appears clear to us that she intended to will a life estate to each of tbe three named persons and after their death tbe remainder went to her church as specifically designated.

It is perfectly obvious that the will was not drafted by a skilled draftsman. When snch appears it is onr duty to give more liberality toward the construction of the instrument. Page on Wills, Yol. I, sec. 61.

It will be observed that the testatrix added a condition to the end of Item III as follows: “ & said property not to be sold.” If this “condition” is considered as a restraint of alienation on the part of the church then it is void. Sizer’s Pritchard Law of Wills and Executors, 2nd Ed., section 161. All this would mean though is that the “condition” above quoted is void and the property or remainder would pass to the church without the restriction or restraint of alienation attached.

For the reasons expressed the decree below must be reversed and a declaratory judgment will be entered here in accordance with the foregoing opinion.  