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It is not a function of the courts, nor is it a role the courts may assume, to revise or to make over the writing in a will to achieve results different from results which flow from the plain language used by the maker of the will. The courts may not speculate, from extrinsic evidence or otherwise, that some other result may have been intended.
Chester Melvin Ford and Lola Mae Ford were married in August 1943, and appellant Clyde Ford was the only child born to their marriage. Lola Mae ford had previously been married, and from that marriage, she had a son who predeceased her, and three grandchildren, appellees herein. Chester and Lola each executed a holographic will, devising all of their properties to each other, as the other “saw fit.” The will also stipulated that the devisee was not to sell, mortgage, or lease any of the realty for three years without the written agreement of appellant. Chester died in November 1972, and Lola subsequently died in December 1972. Appellant, individually and as administrator with will annexed of the estates of his deceased parents, brought the present suit, naming as defendants the three grandsons of his mother, by an earlier marriage, and sought judicial construction of certain portions of the wills which appellant asserted were ambiguous. Appellant contended that under the proper construction, the language “created a life estate in real property in Lola Mae Ford with remainder to Clyde M. Ford in fee simple, or alternatively created a testamentary trust expressly or by implication for the use and benefit of Clyde M. Ford.” The trial court determined that the language of the wills, identical in each instrument, was clear and unambiguous, and that Chester Ford devised fee simple title to all the property, real and personal, owned by him, at the time of his death to his surviving wife. The trial court further concluded that neither of such wills created a life estate to the surviving spouse with remainder to appellant. Moreover, the trial court concluded that the language in the wills, providing that the devisee was not to sell, mortgage, or lease any of the realty for three years without written agreement of Clyde M. Ford, was "void as being a restraint on alienation and repugnant to the devise in fee. Appellant challenged the trial court’s decision.
Did the trial court err in holding that no ambiguity existed in the language of the deceased’s wills?
The court noted that ambiguity would arise only when the meaning which emanated from language used in the will admitted of more than one interpretation. In this case, the court held that there was no ambiguity in the language of the Ford wills, which, in each writing, clearly and plainly devised all property to the other spouse to do with as the other saw fit. According to the court, the attempt to place a restraint on alienation could not have changed or nullified the devise. It was not a function of the courts, nor was it a role the courts may assume, to revise or to make over the writing in a will to achieve results different from results which flow from the plain language used by the maker of the will. The trial court further concluded properly that the language in the wills that provided that the devisee was not to sell, mortgage, or lease any of the realty for three years without written agreement of appellant was void as being a restraint on alienation and repugnant to the devise in fee, and the language of the wills devised fee simple title to all property, because the wills contained no language clearly showing a lesser estate than the fee was intended to be devised.