Kern v. Stushel

(after stating the facts).—We have' no hesitation in affirming the decree of the trial court. While our conclusion as to the intent of the testatrix is different, we arrive at the same result as did the trial court. We are, convinced that in framing the provisions of paragraph four the testatrix and her scrivener assumed that she was the absolute and present owner of the principal note. The language used is consistent only with the assertion of present absolute proprietory dominion. Her direction, addressed to her executors, that the plaintiff should “in no wise be held lia ble’ ” was meaningless without testatrix thought they *17Lad the power to hold her daughter liable and might exercise it unless directed not to do so. At least that is so in the absence of words which might be construed into a direction to pay the amount of her daughter’s indebtedness to whomsoever might be the owner of it. But no words of payment are used. The language which follows is, “that any such claim against my daughter remaining unpaid at the time of my death be cancelled and null and void.” These are not words one uses in a direction to pay. “The word ‘cancel’ excludes the idea of payment; cancellation being the forgiving and obliteration of a debt. It not only is in no sense a payment, but it is the very thing that makes the payment unnecessary and impossible.” [Brown v. Gibson’s Ex’r, 59 S. E. 884 (Va.).] The same may be said of the words “null” and “void.” And we see no reason for not giving to the words their proper meaning. There is no indication, as defendant suggests, that the language used is unskilled or inaccurate. On the contrary, we have been impressed that the will, which for the sake of brevity we have omitted to set out in full, was drawn by one skilled in the choice and meaning of words; one whom, had he intended to indite-a direction to pay, would have done so in apt and forceful language of payment, and not in the entirely different language of forgiveness and cancellation. It is plain that the paragraph assumes absolute ownership in the testatrix and discloses an intent to forgive and not to pay the debt of the plaintiff. This construction is borne out by the fact that it is only by assuming that the two thousand dollar indebtedness of the plaintiff belonged to the testatrix that the estate can be thought sufficient to pay- the legacies provided for and to forgive said indebtedness. The will was made only sixteen days before the death of the testatrix. It is not to be assumed that she sought to give more than she thought she had. It is more probable that, being old in years and having *18had possession of the debt and the right to the interest from it for nine years, she thought she owned it, and made her Avill accordingly.

The forgiveness of this debt was in the nature of a specific legacy. The testatrix not owning it and not having the power to forgive it, the legacy failed, at least as to so much thereof as she did not own, the principal.

There still remains the question whether the language of paragraph four is broad enough to forgive the interest accrued and unpaid at the time of the death of the testatrix, but we need not concern ourselves with that. In their pleadings the parties have agreed that it is and the trial court has so decreed. As the decree of the trial court denies the right of the plaintiff to be reimbursed out of the estate of the testatrix for payments made by the plaintiff in satisfaction of the principal of the two thousand dollar note and interest thereon since the death of the testatrix, it is in effect in accordance with this opinion and is therefore affirmed.