Ball v. Phelan

47 So. 956 | Miss. | 1908

Whitfield, O. J.,

delivered the opinion of the court.

The bill of complaint in this cause was exhibited by the appellees herein against William M. Ball for the purpose of canceling, as a cloud upon their title, certain conveyances under which Ball claims to be the owner of lands described -in the ’bill. The bill avers that the appellees are the grandchildren of one Wm. P. Hunt, who died the owner of the lands situated in Mississippi described in the bill, testate. That the said Wm. P. Hunt was a resident of the state of Tennessee, and his will was duly admitted to probate in the probate court of Shelby eounty, Term., and afterwards by the chancery court of Tunica county, Miss., some thirty-six years later. That the will was a holographic will. That the said testator left as his widow Sarah Hunt, and as his only heir at law Julia A. Phelan. That the appellees are the children of Julia A. Phelan, who died on the 13th day of February, 1906. That they are the only children of the said Julia A. Phelan, and the only lineal descendants of 'Wm. R. Hunt. That after the death of said Wm. R. Hunt the defendant Ball, or those under whom he claims, bought from the said Sarah Hunt and Julia A. Phelan the land described and claims the same adversely to complainants. The bill sets out in Imc verba the will of Wm. R. Hunt, under which the appellees claim that an ulterior limitation to them in fee after the death of their grandmother and mother was devised by implication. The defendant demurred to the bill. All the grounds of the demurrer present practically the same question, which is that complainants have no title or interest in the land under the will of Wm. R. Hunt. The demurrer was overruled and an appeal granted by the chancellor.

The whole ease made by the bill, and the whole defense relied upon by the defendant, is presented by the demurrer. If that is sustained, complainants have no standing in the court. If it is overruled, the' relief prayed by the bill follows as a matter of course, and nothing is left except an accounting.

The will of Wm. R. Hunt is as follows:

“In the name of God, Amen.

“I, William R. Hunt, being of sound mind, but feeble of body, do make and declare this my last will and testament hereby revoking all wills and testaments heretofore made.

“Item 1st: I will unto my wife, Sarah E. Hunt, for the time of her natural life, one-half of my property, both real and personal, to be hers during her natural life, then to go to my daughter, Julia Hunt. •

“Item 2nd: I will and bequeath to my daughter, Julia Hunt, during the time of her natural life, the other half of my property, both real and personal, to be hers, free from the control -of any future husband, and also free from the debts of any future husband, he is to have no title by curtesy, or any other title by reason of her death, or is to inherit it through the death of any child or children they may have or in any other manner whatever.

“Item 3rd: In case my daughter Julia should die without child, o.r in case the child or children should die before marrying or become of age, then the .whole property given to my daughter Julia, all for her life, should go to Bettie Hunt Selden, and should she die before she marries or becomes of age,, then one-half should be the property of Julia Moore Driver, and other one-half shall be divided between the children of my sisters, Marie L. Joiner and my sister, Leona E. Thompson, and the said Julia Moore Driver shall receive the property only for her natural life, free from the debts and contracts of any present or future husband and should at her death follow the same line of descent as the first mentioned half of the property.

“Item 4th: It is my will that the whole of my insurance on my life, amounting to $40,000, be put into the hands of my executor to pay my debts with, and he is directed so to use it, and if there be a surplus pay it into the general mass of my estate.

“Item 5th: I appoint Wm. Joiner my executor of this my last will and testament, and desire that no security be required of him.

“Eor witness whereof, I have hereunto set my hand and seal this 26th day of January, A. D. 1872.

“[Signed] Wm. R. Hunt.

“Signed by us in the presence and by the direction of the testator, January 26th, 1872.

“[Signed] J. W. Clapp.

“J. P. Meux.

“There is to be paid all mother’s money except $7,000, my share of her property, which is to be kept as mine.

“Proven at the June term, 1872, of the probate court, and ordered to be recorded.

“Recorded June 26th, 1872.

“James Rulby, Clerk.

“J. H. Cullen, D. C.

It will thus be seen that the exact question presented for decision upon the consideration of this will, especially the third clause of said will, supra, is this: Is there an implied limitation of a remainder in fee to the children of Julia Phelan after her death by said will ? There is, of course, no express limitation, and these complainants, if they take at all by purchase, must take by virtue of such implied limitation. The one fundamental rule governing the construction of all wills is to ascertain what the intent of the testator was. This intent must be gathered, it is true, from the language used in the will, and by this is meant that such intention shall be gathered from the four corners of the instrument; that, is to say, from the whole will—the whole frame of the will; the whole scheme of the testator manifested by the will, taking into consideration and giving due weight to every word in the will; and, when once the actual intent of the testator at the time of the making of the will has been in this way ascertained, all minor, subordinate, and technical rules of construction must yield to this paramount intent thus ascertained. As well said in Re Donges’ Estate, 103 Wis. 497, 79 N. W. 787, 74 Am. St. Rep. 885: “The comprehensive and all-dominating rule in construing wills is that the intention of the testator must be ascertained from the words thereof, in the light of all surrounding circumstances, and that intention be given effect. To accomplish this, multitudinous minor rules have been announced, more or less technical, which, however, serve not so much to restrict or constrain the judicial mind as simply to guide and to indicate probabilities in the absence of countervailing consideration. None of them are to be followed blindly if they lead to subversion of what was clearly the intention of the testator.” It is also, of course, true that there must be no implication where that implication, violates public policy or the settled rules of positive law. ' Extreme language is sometimes used by the courts as to how strong this implication must be. We think about the bese statement on this point we have found is that of Judge Pinch in the Matter of Vowers, 113 N. T. 569, 21 N. E. 690, where lie says: “The rule of construction which seems to have prevailed is that the inference need not be irresistable or such as-to exclude any doubts possible to be raised, but must, nevertheless, be such as to leave no hesitation in the mind of the court, and must rest not upon mere conjecture. The intention must be clear so that no other reasonable inference can be made.”' Another question we make on this point because of the strong, common-sense grip it manifests upon this precise point, and that is what was said by Strong, J., in Still v. Spear, 3 Grant’s Cas. (Sup. Ct. Penn) 306, in a case not cited by counsel on either side, where he said: “The contruction given by the court below to the will of Charles Still, Sr., plainly defeats the-general intention of the testator, and this without any necessity, for those intentions are not in conflict with any rule of law, or with any policy which the law does not tolerate. There are certain principles, it is admitted, which are intended to assist in ascertaining a testator’s intention, and which are controlling when that intention is doubtful. They have been invoked to sustain this judgment. Among them are the maxims that the first taker of a legacy is presumed to be the chief object of a testator’s bounty; that in doubtful cases legacies are to be held vested rather than contingent, absolute rather than defeasible; that the law favors such a construction as will render estates alienable; and that the primary intent is to be regarded rather-than the secondary, if both cannot prevail. But these principles shed no light upon the will now before us. They are only applicable in cases of doubtful construction. They are never allowed to defeat a plain intent expressed. The purpose of the-testator in this will is not obscure. That he did not intend Levi Still to have any share of his estate absolutely, that he did not intend to expose any part of it to seizure at the suit of Levi’s creditors, and that he did intend a benefit to the children of Charles Still, on the happening of an anticipated contingency, would be very plain to every common mind. It is only when refinement commences that doubts arise.”

Lord St. Leonards said very strongly in the profoundly considered case of Abbott v. Middleton, 7 House of Lords Reports, side page 67: “I deny that you are not at liberty to look at'the whole frame of the will in order to collect the general intention.” And in the same case he says again, speaking of a construction in the case of King v. Mellen: “Now look at that; Lord Hale tells you that he could not be thought to' prefer the youngest son before issue of the eldest;” and, in his most masterly exposition in that cae, he finally says: “I endeavor, and always have endeavored, to keep within these rules; but while I have endeavored to keep within those rules, I have also endeavored, where I could, to make them bend so as probably to meet the justice of the case.”

Van Vleet, Vive Chancellor, put it very well in Bishop v. McClelland's Ex’rs, 44 N. J. Eq. 450, 16 Atl. 2, 3, 1 L. R. A. 551, where he said: “A bequest may undoubtedly arise from implication, but, to warrant the court in so declaring, there must be something more than conjecture to support its declaration. The implication must be a necessary one. The probability of an intention to make the gift must appear to be so strong that an intention contrary to that which is imputed to the testator cannot be supposed to have existed in his mind. A construction in favor of a gift by implication should never be ádopted, except iq cases where, after a careful and full consideration of the whole will, the mind of the judge is convinced that the testator intended to make the gift.”

Let us now, in the light of these general principles, come to a' particular consideration of the authorities relied upon on both ■sides, and, first, as to the authoritites which support the contention that there is here a remainder in fee to Julia’s children by implication. In Frogmorton v. Holliday, 3 Burrows, 618, the -testator, after giving, devising, and bequeathing unto his son David Hasselwood or his heirs forever certain property, de-. vised to his other son, John Hasselwood, a certain piece of real-estate, and added: “And if the said John Hasselwood shall happen to die his minority or before he comes to age, then I de-. vise the said property unto my three daughters equally share and share alike.” John was of the age of seven years at the time of the making of this will. John entered upon and was seised of the property until the time of his death, which happened in 1762. In the lifetime of John, David died intestate, leaving issue, to wit, Davi'd, his eldest son, who by deed of bargain and sale, conveyed the premises away to Stephen Bramstone. It was held that John did not take a mere estate for life, but the limitation over, only upon the contingency of his dying in his minority, shows that it was intended to give him an absolute estate in fee which he might dispose of if he came of age, and that unless he lived to be of age, when he might dispose of it, it wás meant that it should go over to the daughters named' in the will, and the conclusion was that John should have the estate unless he died in his minority, although there were no words about John’s leaving issue.

In Newland v. Shepherd, 2 Peere Williams Reports, p. 193, Sir George Newland, whose daughter had married Shepherd and had three children, after making some other dispositions, “devised the residue of his real and personal estate to trustees to pay the produce and interest thereof for the maintenance and benefit of such of his grandchildren by his said daughter as should be living at the time of his decease until his said grandchildren should come to the age of twenty-one or be married; and he went no further nor made any other disposition of his estate.” It was held that the grandchildren on arriving at ago were entitled to the entire surplus, both of the real and personal estate.

In Goodlittle v. Whitby, 1 Burrows, 228, R. P., one devised his property to trustees in the following language: “In trust that they should lay out and bestow rents and profits for the maintenance, etc., of Thomas and John Haywood, sons of the testator’s sister, Elizabeth Haywod, during their minorities; and when and as they should respectively attain their ages of twenty-one, then to the use and ,behoof of the said sons of his sister Haywood and their heirs equally.” Thomas Haywood, the eldest of the testator’s two nephews) died under the age of twenty-one without issue. Hpon his death, his brother John being then under age, Thomas Whitby, the testator’s heir at law, was let into the moiety of the deceased’s nephew Thomas Ileywood by the trustees. John, the surviving brother, brings the ejectment, and claimed the moiety of his deceased brother, as well as his own proper moiety, and the question was whether this moiety of Thomas, the deceased brother, belonged to John Haywood, either as heir to his brother or as surviving joint tenant, or whether it belonged to Thomas Whitby as his heir at law as an undevised estate; and Lord Mansfield held as follows: “Here, upon the reasoning of the thing, the infant is the object of the testator’s bounty; and the testator does not mean to deprive him of it in any event. Now, suppose that this subject of the testator’s bounty marries and dies before his age of twenty-one, having children. Could the testator intend in such an event to disinherit him ? Certainly he could not.” And let it be borne in mind that Julia Phelan, in this case, had children who came of age and married. Lord Mansfield said in the ease supra that it was “so plain that it was a shame to cite cases upon it,” but he did cite a devise, Tomkins v. Tomkins, where the devise was to his brother in trust for his eldest son B. until he should attain twenty-one years, and if he should die before twenty-one then a devise over, in which case the court held the age of twenty-one to be no limitation of B.’s interest, but only a limitation of the trust during his minority, and that B. took the whole by implication; and Lord Mansfield added, “So, here, the property is absolutely given, and the limitation is one of a trust.”

In the case of Crowder v. Clowes, 2 Vesey, Ch. Reports, 449, the testator devised to his niece, Letitia Dawson, the sum of £1,000, to be paid to her immediately after his decease if she should happen to be then married; and then added: “But if my said niece should- happen not to be married at the time of my decease, then I direct the interest for her said legacy of one thousand pounds to be paid her during her natural life, and to be calculated and be paid to the day of her death, or till she should marry, and if she should die unmarried, then the principal of the legacy .was to lapse for the benefit of the person who might be entitled to his real estate.” The legatee was unmarried at the time of the testator’s death, but married soon after-wards. The bill was filed by her with her husband claiming this legacy, and the Master of the Rolls said: “There is no doubt that is there are not express words or necessary, and I will say unavoidable, implication from his having given it over if she dies unmarried, I cannot supply it I cannot dive into his intentions, unless it is so expressed as to satisfy me he did mean it. The only question is whether upon reading this legacy and coupling it with a codicil giving two hundred pounds more to Letetia which may have effect upon the word ‘addition,’ it is not clear he meant to give her this when she married. Is it not the same as to say that is shall not lapse if she does marry? I am clearly of opinion it must be raised.” And so Letitia took the legacy when she married, though she married after the testator’s death.

In Wainewright v. Wainewright, 3 Vesey, 558, the devise was in these .words, after giving to his four nephews and his niece each the sum of £300: “All the rest of my personal estate not hereinbefore disposed, I give unto my said nephew Robert Wainewright and John Seagrave upon trust that they should convert the property into money and lay it out toward the maintenance of his great nephew Thomas Wainewright now placed with my nephew Robert Seagrave, in Nottingham, until he shall attain his twenty-one years;” and added, “and in case my said great nephew shall happen to die before he attains his age twenty-one years, then my trustees shall pay the whole of said surplus of my personal estate, etc., unto and for the benefit of my said nephew, Thomas Wainewright.” The testator died soon after the execution of this will. His great nephew, Thomas Wainewright, having attained the age of twenty-one, filed a bill praying that he might be declared entitled to the residue of the testator’s personal estate, and the Master of the Bolls held that there was a necessary implication that, if the plaintiff Thomas did live and attain the age of twenty-one, he should have the residue of the pei’sonal estate, and significantly said: “Can any one doubt about it? His death iinder the age of twenty-one is to give it over to his father; but if he lives to attain that age, then the testator dies intestate—that is impossible. Is it not the necessary inference exactly like that in the case I have cited ?”-—to wit, the case of Crowder v. Cloud, supra.

In Paylor v. Pegg, 24 Beavan, 105, the will was construed as follows: “And if my son should happen to die before he attains his age of twenty-one years, then in that case I do hereby empower my wife to hold my whole estate during her natural life. If she continues my widow. Likewise, I do hereby empower my trustee, at the decease of my wife, to sell my estate, both real and personal, and out of the money I direct them to pay two legacies, etc., the residue to go- amongst my nephews and nieces.” The testator died in 1809. His son John attained twenty-one in 1823, and was let into possession. The testator’s widow died in 1841, and the testator’s son John died in'1856, having devised the estate to Mrs. Pegg. It is true this was not a case of implication, -but I cite it to show that the court in holding that the son took the estates upon death of his father, by descent, worked that result out by finding it to be the purpose of the ■father not to disinherit his son, the court saying: “It is impossible to understand why the testator should have given the property to his son until he was twenty-one and then took it all away from him and gave it to his nephews.”

A striking case is Hoskins v. Hoskins, 9 East, 305. There the devise was: “I likewise give and bequeath to my said son Bichard the leasehold premises of Boskief, in St. Allen aforesaid ; to hold the same unto my said son Bichard until said son Thomas shall attain his age of twenty-one years and no longer. In case said Thomas Ilosldns shall die in minority, then my will is, and I do hereby give and bequeath the said leasehold premises of Boskief unto John or Bichard as soon as the said Bichard Hoskins or either of them surviving or attain their age of twenty-one years as aforesaid, and I desire the said premises of Boskief may be quitted and delivered up as aforesaid by my said son Bichard Hoskins accordingly.” It was held that there was an implication from the words of the will that Thomas should take Boskief in fee when he came of age. Emphasis was laid, it is true, upon the last clause quoted, but the construction was upon the whole frame and scheme of the will.

In Re Donges’ Estate, 103 Wis. 497, 79 N. W. 787, 74 Am. St. Rep. 885, the devise was: “I give and bequeath to my wife Olara Donges all the real estate of which I may die seised, to have and to hold the same until the youngest of my children if any be born to me, shall attain the age of twenty-one years. In ease there are no children living at the time of my decease, my said wife shall be the sole owner of my real estate.” The question was what was the intention of the testator if children were born to him and living at the time of his decease after the youngest attained twenty-one years of age. After an elaborate examination of authorities, in the course of a very able opinion, it was held that it was clearly the testator’s intention to devise the property to the children on the majority of the youngest, they taking by implication.

Another instance of devise by implication may be profitably studied in the case of Masterson v. Towshend, 123 N. Y. 458, 25 N. E. 928, 10 L. R. A. 816. The case of Clopton v. Davies, 4 L. B. Com. Pl. Cas. 159, is very much in point here. There was a devise to trustees to apply the rents to the benefit of the testator’s granddaughter, Mary Annie Clark, until she attained the age of twenty-one, and if she should die under that age, then over. It was held that there was a devise of the fee by implication to his granddaughter, Mary Annie Clark, the court saying that to deny the implication would involve the strange conseqnence “that, if the granddaughter die after twenty-one, the estate would go over to the two daughters named, whereas, if the granddaughter attained twenty-one, it would go over to the residuary legatees, who were other persons. The intention, the court said, was not to be imputed to. the testator.”

One of the strongest cases for the complainant is that of Kinsella v. Caffrey. There the testator gave £50 a year each to L. and T. for their lives, and on the death of either, leaving-children, his annuity to go to such children, but if L. or T. should die leaving no children, at his death, his annuity was to go to the survivor for his life, and, if both should die leaving no children, or, leaving children, the said children should die under twenty-one, both annuities were to sink into residue. T. died unmarried, and afterward L. died, leaving children. It was held that L.’s chilren were entitled by implication to T.’s annuity, the court asking, “Why was the event of their attaining twenty-one introduced if they were intended to take nothing prior to their attaining twenty-one?” This case squarely decides that where the limitation over to the third person is not only upon the default of children, but upon the event that such child shall die under twenty-one years of age, this last circumstance is sufficient to raise an estate by implication. The decision did not go—that is to say, the devise was not'implied—upon the ground that it increased an estate already given, but because the limitation over was upon the death of a child before coming of age. Mr. Jarmon propounds in his valuable work, Jarmon on Wills, vol. 1, p. 557, the inquiry, “Why was the event of their attaining twenty-one introduced if they were entitled to take nothing prior to their attaining twenty-one ?” causing the same to be printed in italics, for the express purpose of showing that this thought was a controlling one.

In Aspey v. Lewis, 152 Ind. 494, 52 N. E. 758, an estate in remainder by implication was held to have been given to the daughter, Maria Louisa, under this provision: “And I direct further that the estate (that is to say, a widowhood estate in his wife Elizabeth) that is bequeathed to my wife shall be in full possession of my only daughter Maria Louisa at the death or marriage of my wife, provided she be living’, and if she is not living at the death or marriage of my wife, then the estate to go to the use of my brothers or sisters or their heirs.” The coiitrolling thought was that no construction of a will should be accepted unless the purpose was manifest, if that purpose resulted in the disinheritance of a child, and the construction was had so as to vest this remainder in fee by implication in Maria Louisa as carrying out the intent of the testator, althought there was an express, provision in the will that if Maria Louisa was not living at the death of the widow the estate should go over to the brothers and sisters.

A very important case in considering the construction of this will, not referred to by counsel on either side, is the case of Bentley v. Kaufman, 12 Phil. (Pa.) 435. The testatrix directed all her estate, real and personal, to be sold and the proceeds to be invested by her executors in the best securities, the interest to be paid to her son during his nautral life. If her son should die without issue, then the -whole investment to be given to the Lincoln Institute. It was held first that the words “die without issue” meant a definite failure of issue, -and that, consequently, the son did not take an absolute interest in the fund, but only life interest in the income; and, secondly, that there was a gift by implication of the corpus of the legacy to the son’s issue if he should leave any at his death. Thayer, J., made the following exceedingly strong observations on this case: “The real question, therefore, which is now to be determined is, what interest did Leon Kaufman take under his mother’s will? Did he take an absolute estate, or only a life estate? And, as regards the answer to this question, no difference is to be made between that portion of Mrs. Kaufman’s estate which was of her own acquisition and that portion .which she derived from her father by her survivorship of her sister Sarah and her brother Joseph, for over both portions alike she had an absolute right of control and disposition, and both alike passed under her will. Now, it must be quite plain to the common -understanding that Mrs. Iiaufman did not intend to give her son an absolute estate in her property, but only the interest of the proceeds, when invested, during his natural life. In the first place, sho said so explicitly in her will. The gift to her son is a gift ‘of the interest of my estate,’ and it is do be paid to my son during his natural life, in half-yearly payments, and she gives him nothing more. In the second place, she directs that if her son, Leon Kaufman, should die without issue, that the .whole of her estate should go to the Lincoln Institute. IVliat is this but a gift of the interest to the son for life, with a remainder (if one may, for convenience, speak of a remainder with reference to personalty), by necessary implication, to his children, and, in default of children, a gift over to the objects, of her charitable bounty ? But, although this may be ever so plain to the common understanding, it is asserted by the plaintiff’s counsel that the intention is defeated by the application of the rule that when there is a gift of personalty for life, followed by a gift over in default of issue, there being no immediate gift to the issue, the gift over is void, and the first taker takes absolutely—a proposition entirely correct in its terms where there is no intermediate gift to the issue, either expressly or by implication, and where the gift over is dependent upon an indefinite failure of issue. But it has no implication .whatever in a case where the limitation over is on failure of children only, or on failure of issue within a given time, or where there is an intermediate gift by necessary implication to the issue of the first taker.”

In the case of Ranelagh v. Ranelagh, 12 Beavan, 200, the devise construed there was this: After giving to his two daughters during their natural lives £4,000, and to his two sons £2,000 each, during their natural lives: “In case of the decease of any of the above parties without issue, their, his or her proportion to be divided equally amongst the surviving heirs.” It was held that dying without issue meant living at the date of the death of the legatee—definite failure of issue. It was held further that the issue of the legatee were named in the codicil, only as a description of the contingency on which the legacy was to he given over, and that no express interest .was givun to the children. The Master of the Bolls went so fan as to say that he thought it extremely probable that the testator did mean a benefit to the children, but “si voluit non dixit ” and he denied the implication. He referred expressly to the distinction that might exist between the case where the first devisee took for life only and where he took the fee, as to which later.

Another strong case against implication is the case of Den, Lessee of Elizabeth Franklin v. Trout, 15 East’s Beports, decided in 1812 by Lord Ellenborougii. Still another very striking case agáinst implication is the case of Dowling v. Dow-ling, 1 Eq. E. L. B. 441.- The case was first decided by Sir John Stewart, Y. 0., who held that there was an implied devise, but afterwards it was reversed. See 1 Chancery Appeal Cases, L. B., decided in 1866, Dowling v. Dowling, and the devise by implication was denied. In this case the testator, B. II. Dowling, after various devises to his daughter, and to his daughter’s husband, and his two sons-in-law, finally added this devise: “I bequeath to each of my sons as follows (four in number), the remainder of my household furniture, and all things appertaining to my household effects, to be equally divided, that my freehold estates and all other property shall be disposed of as my executors think best, and be added to and invested with any other personal property, the interest thereof to be «equally divided half yearly between my four sons above named, and at the decease of either without lawful issue, such share to revert to the remainder then living, their child or children.” Lord Justice Turner, construing this last provision, said: “The gift to the sons'was an unlimited gift of the interest passing the capital. The expression is, The interest to be divided half yearly between my four sons, and at the decease of either without leaving issue, such share to revert to the remainder,’ which seems to assume that the share of each was considered by the testator to have become vested in the original persons to whom he had given it. There is, therefore, in my opinion an absolute gift to the sons but this absolute gift is subject to this condition: that, upon the death of either of them without issue, the shar'd is to revert to the remainder then living or their child or children. It appears to me, upon the construction of the whole will, that the children arp not to take any interest as against their parents. If the parents are out of the way, then the children are to take in their place, but so long as there are parents the children are to takie nothing, and the testator thought that in that case he had done enough for them, for the parents might provide for their own children. This case is exactly on all fours, in principle, with the case of Halsey v. Gee, 79 Miss. 193, 30 South. 604. That case went upon the ground that the two devisees there took the absolute interest, not a life estate, an absoluto interest, determinable, it is true, upon the contingency named, but nevertheless an absolute interest as distinguished from a life estate.

In the case of Scale v. Rawlins, reported in the Law Reports, Appealed Cases for 1892, the provision was that the testator gave three freehold houses to his nephews, S. and W., upon trust to pay the rents and interest to his niece during her life, for her separate use, and after her death, she leaving no child, he gavie one of the houses to' S. and the two others to W. After making other bequests, he gave the residue of his whole estate to S. and W. equally. The niece died leaving children, and it was held that the niece took a life interest only, and no estate by implication was allowed to her children. Lord Halsbujby said: “The difficulty which we have here is not speculating upon what peradventure may, at some time or other, have been in the testator’s mind, but I must find words which are absolute and express. I may be perfectly satisfied that he intended that this lady should have an estate of inheritance in this property. I may be satisfied that that was his intention otherwise than by the words of the will, but I should be compelled to come to the •same conclusion as I do now, viz., that that intention is not sufficiently expressed. ... It is said that he intended to make a gift to the children. I cannot say that he had not the intention, but all I can say is that he has not expressed it, and your lordships cannot put it in words simply because you may have some suspicion that in making his testamentary disposition that was the intention on his mind.” This is, perhaps, as strong a statement as can be found against devise by implication, unless perhaps—and we close quotation on this topic with the language in the case—it is the language of Sir H. Gotten, referred to in 2 Jarmon on Wills, where Mr. Jarmon says: “Sir H. Gotten pointed out the fallacy of a proposition urged at the bar in this case, and which sometimes of late had been heard even from the bench, that, subject to the established rules, the duty of the court was to construe the will as a person of ordinary intelligence would do, and that no such person would doubt that in this case the testator intended the widow to have a life estate. ‘Of course,’ said the L. J., ‘we are bound by the rules which have been established by the courts to enable us to say what the words used do mean. Subject to that, we are bound to construe the will as trained legal minds. And that differs from the mind of an ordinary person in this way, that even persons of ordinary1 intelligence not so trained are accustomed to jump at the conclusion as to what a person means by the words he used, by fancying he must have- done what they, undter similar circmnstances, think they would have done. . . . That is conjecture only, and conjecture on an imperfect knowledge of the circumstances; because, although, if the facts before them and in evidence were all the facts, they may think that they would have taken a particular course, yet it does not follow that all the facts known to the testator are in their minds, or in evidence before them, or that the testator’s mind was in any way constituted as regards the attention he paid to the rights and claims of the different parties dependent on him as their minds are constituted, or that lie would, have acted in the same way as they. Therefore, as lawyers, we must construe the will like, any other document, with one difference only, namely, that technichal words are unnecessary in a will.’ ”

These cases have been selected as the clearest statements of the law for and against devises by implication. A multitude of other cases have been cited by learned counsel on both sides, every one of which has not only been read, but carefully studied. Out of all this mass of learning, the true purpose should be to derive some general principles supported by settled authorities for. our guidance in the construction of this will. If any one thing can be evident, after the review of the authorities, it is tvhat Sir William Jones said more than two hundred years ago, that no will has a brother.” Every will must be determined upon considerations pertaining to its own peculiar facts and terms-alone. One of the propositions most earnestly insisted on by the appellants is that, where there is a bequest to a person, and if he shall die without having children living at his death, then over, this does not raise an implied gift in. the children, but that the parent takes an absolute interest defeasible on his dying without having had, or without leaving, a child, as the case may be. This is quoted from Jarmon on Wills (6th Am. Ed), vol. 1, 555, 556. Mr. Jarmon states that the reason of this construction is that the rejection of the implication in such a case is not productive of any absurdity, for, say he, “It supposes the testator, by making the interest of the legatee indefeasible on his having or leaving a child, to intend that if there are children he shall have the means of providing for them,” and this rulé is thus stated in all the text-writers; but that is the case of the first taker taking the absolute interest, and not any less interest. It is like the case supina Dowling v. Dowling, and it is also like the case of Boling v. Miller (Sup. Ct. Ind.; decided Feb. 18, 1893), 133 Ind. 602, 33 N. E. 354, and the.very important case of Baker v. McLeod’s Estate (Sup. Ct. Wis.; decided May 5, 1891) 79 Wis. 534, 48 N. W. 657, the opinion being by the very learned Judge Cassoday, in the course of which Judge Cassoday gives approval to the following quotation from the opinion of Judge Andrews in Vanderzee v. Slingerland, 103 N. Y. 54, 8 N. E. 249, 57 Am. Rep. 701, which we also heartily indorse to-this effect: “It may be safely assumed that, where a will is-dictated under the influence of family relations, it would seldom happen that a testator would intentionally cut off the issue of a son or daughter from taking the share of the parent in his estate for the benefit of collateral objects.” -We think this announcement of Judge Andrews is the announcement of a great and correct legal principle, to which too much heed cannot be given; and in the case of In re Application of N. Y., etc., v. Van Zandt, 105 N. Y. 89, 11 N. E. 492, 59 Am. Rep. 478, the provision of the will was this: “I direct that in case my daughter Minnie should die without issue, that my real and personal property should be possessed and enjoyed by my husband and my sister during their natural lives, and' after their death, the real and personal property to be divided equally between my four brothers (naming them), share ami share alike; the devise over to my husband, sister and brothers to depend upon the contingency of my daughter Minnie dying without issue.” The court held that Minnie Van Zandt took under her mother’s will a base or conditional fee, defeasible on her dying without leaving issue living at the time of her death; that her issue, should she leave any, would take by inheritance from her, but that a conveyance by her in her lifetime would boeffectual as against her children. We call especial attention to this case as being also identical with Halsey v. Gee, 79 Miss. 193, 30 South. 604. Minnie took an absolute interest, defeasible upon the contingency named, not a life estate. In the case of Cassell v. Cooke, 8 Serg. & Rawle (Pa.) 268, 11 Am. Dec. 610, the testator devised to his son, George Stewart, a plantation as soon as he arrived at the age of twenty-one, not saying’ what interest he gave, but giving generally, and then adding, “If my son, George Stewart be removed by death before he is of age, his part only shall fall to my two daughters.” It was held that George took an absolute interest defeasible upon his dying under twenty-one, and this strong language is used in the opinion of the court: “The whole doctrine of the effect of the words, ‘If he should die under twenty-one/ is fully stated” in Bramstone's Lessee v. Holladay, 1 W. B. L. 335, 3 Burr. 1618, it clearly appears that the giving over on a dying before twenty-one shows an intention that, if the party attain twenty-one, he shall have a fee-simple, and this case is approved in Busby v. Busby, 1 Dall. 226, 1 L. Ed. 111, as a leading one, on the general doctrine of a devise by necessary implication: “Let any man ask himself this question: ‘What did the testator mean when he said if my son George be removed by death before he be of age his part to fall to my two daughters ?’ His answer most assuredly would be that he intended by these words that If he arrived at that age he should have the power of disposing of it as he pleased, and, if he died without disposition leaving heirs, it should descend to them; that the limitation over depended on one contingency—his death within age. This is not .a construction by conjecture, but one arising from the words themselves on the most necessary implication.” The last four cases are of very great importance as settling the point as stated, where tlie first taker takes an absolute interest; and it is upon the principle announced in these four, supra, that Halsey v. Gee, 79 Miss. 193, 30 South. 604, rests. The interest there given to the first takers was general and absolute, defeasible, however, upon the happening of the contingency named. There was not there any life estate, or any less estate than an absolute one, defeasible, however as stated. Halsey v. Gee is perfectly sound on that principle, but it is not a case proceeding at all upon the line of decision with the two Tennessee cases so much relied on by appellant of Nott v. Fitzgibbon, 107 Tenn. 54, 64 S. W. 26, and Owen v. Hancock, 1 Head (Tenn.), 563.

But in this will, the one thing that stands out clear and distinct and unmistakable—the mountain in the landscape of the will, so to speak—is the express . and positive direction, thrice-repeated in the will, that Julia shall not have anything beyond a life estate, either in the half first devised to her, or the half she was subsequently to take from her mother; that one paramount purpose dominates the whole structure of this will, and to that purpose all else must be made to bend, so that it is idle to cite authorities as to what would be the construction had Julia taken an absolute interest. It is perfectly clear that she-cannot take under this will, either by descent or by purchase, any fee of any kind. It was the clear purpose of the testator to limit her, at all events, to a life estate. The very reasons urged with so much ingenuity and force by the learned counsel for appellant to show that the testator had an overshadowing fear of Julia’s husband ever becoming possessed, in any manner whatever, of any interest whatever in the estate devised to Julia furnish, themselves, the strongest ground for holding that' Julia should have only a life estate, should never take a fee either by descent or by purchase, and should never have the life-estate that she had enlarged by construction into a fee upon the-birth of issue. So to hold would be absolutely to nullify the-paramount provision of the will limiting Julia strictly to a life estate. What, then, is the law where the first taker, like Julia, gets only a life estate ? Mr. Jarmon says, in the passage above; quoted, on page 556, in the first volume "of his great work, as-follows: “And even where the language of the will necessarily confines the interest of the parent to his life, the children will not generally be held to take by implication; it is extremely probable that the testator intended a benefit to them; but si voluit non dixii. But it seems that in such a case the court will lay hold of slight circumstances to raise a gift in the children, and thereby avoid imputing to the testator so extraordinary an intention as that the devisee or legatee over is to become entitled if the first taker have no child, but that property is not to go to the child, if there be one, or its parent. Thus, where a testator having by his will bequeathed one thousand pounds to his niece A. by a codicil, reciting that she had married indiscreetly, and that he intended to Avithdraw the legacy out of her poAver to dispose of it, and out of the power of her husband so to do, did therefore direct his executors to secure his said niece the interest of the said one thousand pounds independently of her husband, by placing out that sum in trust for his niece, she to enjoy the interest or dividends during her life, and at her decease, without child or children, the principal and interest to be divided among such of her sisters as should bo then living. Sir T. Poumer, V. 0., was of the opinion that by the combined effect of the will and codicil he was justified in saying that the children took the legacy by necessary implication.” And this rule has been steadily followed in many cases of great consideration; as, for example, in the case of Sturges v. Cargill, 1 Sandf. Ch. (N. Y.) 318, where the court held that there the language of the will necessarily confined the interest of the parent to his life. The courts in construing Avills, Avill lay hold of slight circumstances to raise a gift in the children to avoid imputing to the testator the extraordinary intention of giving the property to the devisee over, and leaving the issue of the tenant for life unprovided for. In that case Cargill, by his will, after providing for his Avifej divided his real estate into five equal parts. He gave one of these five parts to his executors in trust for the use of the wife of his son Henry diming her life, and on her death the estate was to descend to Henry’s children. The other four portions were given for the use of four other children. Now, it happened that Jane, at the date of the will, the wife of Henry Sturges, the son, had a large family of children, and because the will clearly showed the intention to be to deal with .all alike, and- there was an absence of any reason for cutting off Jane and Henry’s children, it was held that the trustees took in trust for Jane for life, with remaining to her children; the court working this intention out of nothing but the mere environment of the parties and the general frame and scheme of the will. This case does not seem to be referred to by either side in their briefs. The case of Kinsella v. Caffrey, 11 Irish Chancery Reports, 154, is exceedingly strong for the devise by implication, as is the case of In the Matter of Vowers, 118 N. Y. 569, 21 N. E. 690, and Aspy v. Lewis, 152 Ind. 594, 52 N. E. 756. The case of Langston v. Langston, 2 Clark & Finnelly, 194, is also a ease of the strongest sort for the devise by implication.

What, now, are the considerations or circumstances which the court in this case should look to as showing, since Julia’s estate was limited strictly to life, a remainder in fee by implication in the children of Julia? Some of them are as follows: Eirst and chiefly, that Julia’s interest was limited strictly to her life. This we regard as controlling in the construction of this will. Second, there was an exclusion, by the terms of this will, of all the marital rights of any husband that Julia might have, and especially an exclusion of any right he might have to inherit through the death of any child of his and Julia’s. It woud have been far more likely, on the doctrine of probabilities, that such husband might inherit from such child if Julia should be held to take a fee in any view, than if she should be limited strictly to a life estate, and the children should only take the fee absolutely after they became of age or married. The father would be much more likely to have died when this latter period came around than while Julia herself might live. Again, the fact that Hunt, by his will, provided that Bettie Hunt Selden, if Julia died without child, or if such child died before marriage or before coming of age, should take the limitation over; and he made the same sort of ulterior limitation as regards Julia Moore Driver, the other ulterior limitee. The carefulness and solicitude and anxiety manifested by Hunt to dispose of his estate, not only for life to Julia, but to provide three ulterior destinations in certain contingencies named, signalize his set purpose not to die intestate as to any part of his estate, and, consequently, his necessarily involved purpose that Julia should never take a fee of any sort of inheritance or purchase from him. And unless there was a limitation my implication to the children of Julia, then upon the coming of age or marrying of any such child, which would cut off the ulterior limitation to others, there would result necessarily an intestacy as to the remainder in fee, and Julia would, of course, take that by descent, and not as a purchaser under the will. This cannot possibly be the proper construction of this will; for in that case there would be nothing to prevent the husband from inheriting from Julia, which was most sedulously and stringently guarded against by this testator. It is said by the learned counsel for appellant that this will must have been drawn by a skilful lawyer, learned in the law of wills. We confess that a most careful study of this .will has brought us to the exactly opposite conclusion. We think it is manifest that this testator thought when he. wrote the will—it is a holographic will—that Julia’s husband would have curtesy somehow or other in the estate she took. He could not have had any curtesy in a life estate, of course, and yet he certainly thought so, and attempted to provide against it. Nor could he have had any curtesy in a determinable fee.

The very essential nature of an estate by curtesy forbids any such view of the law. Again, it is manifest that it was the testator’s thought that he could limit the right of the father of the children to take by inheritance from them. This is a thoroughly erroneous view, and yet he entertained it, as witness the provision that he should not inherit through the death of any child, etc. Again, it is impossible to read this will without seeing that it was the manifest purpose of the testator to dispose of his whole estate, and not die intestate as to any part thereof. He did not intend that Julia should take anything by inheritance from him arising out of any partial intestacy. It is to be remembered that the rule laid down by Judge Andrews in 113 N. Y. 569, 21 N. E. 690, supra, is strong to show that, where the limitation is over to a third person not related to the testator in blood, it is safely to be assumed that he did intend to preserve his bounty for his own blood, if that construction can reasonable be indulged. If the children of Julia were not intended to take a fee in remainder by implication, manifestly this estate went to strangers to the hood of Hunt, the testator. It must also be kept carefully in mind here that the limitation is not simply over to third persons on the default of children, but on that default, plus the other contingency, that such children should die under twenty-one years of age, or before they marry —two contingencies in fact. Less than this was held in Kinsella v. Caffrey to raise the estate by implication.

It is earnestly argued by learned counsel for appellant that under the decisions of the supreme court of Tennessee, to be noted later, there was a devise here by implication, but that that implied devise is not of the remainder in fee to the children, but of fee to Julia; that is to say, that, upon the birth of issue, Julia’s life estate .was, by implication, enlarged into a devise in fee. And it is urged, which is true, that the courts will go further in implying a devise of an added interest to one to whom some interest has already been devised than they will to imply a devise, or, as it is said, create a devise in one to whom nothing had been previously devised. This abstract legal proposition may be conceded, but the complete answer to this line of argument is that if the court is driven, in this case, to imply some devise, it should most assuredly imply a devise in harmony with the perfectly plain, paramount purpose of limiting Julia strictly to a life estate, which devise wo-uld necessarily then be a devise of the remainder to the children of Julia. Assuredly, in the face of the thrice-repeated purpose to limit Julia to a life estate, and in the face of the most anxious purpose to exclude the husband from any possible interest in his estate through the children or through Julia in any manner whatever, it would be a most extraordinary construction, and a most flagrant perversion of the purpose of the testator, to hold that there is an implied devise here to Julia of a fee upon the birth of issue. It must be kept in mind that this will does not stop with giving the estate to Julia for life, and, if she dies without issue, over to Bettie Hunt Selden, but it was essential that the children should die under age or not marry.

It is earnestly insisted by the learned counsel for appellant that the only mention of Julia’s children in this will is by way of prevention of inheritance by Julia’s husband of property, either through them or lack of them; and counsel stresses as the great controlling purpose of this will the idea that the husband was never under any circumstances, to take any interest in any way. It is undoubtedly true that this was a leading purpose of the will, but it is just as clear that the testator’s mode of effecting this was to limit Julia’s estate to life and leave the children to take the remainder in fee by implication. The one dominant thought in the .will is the limiting of the estate Julia takes to her life strictly. If she should die without children, the husband could not then take, because the fee went over to ulterior limitees most carefully provided for. If Julia had children who arrived at age or married, which was the event which took place in this case, .while no express gift is made to these children, it is incredible that the father should intend to strip them of any interest as soon as they should marry or come of age. This cannot be a sound construction. We think the learned counsel for appellant has too much stressed the anxiety of the testator to cut the husband out, in what they have to say about his curtesy in his wife’s estate and about inheriting from his children^ These are mere blunders as to what the law was on the part of this testator.

There is a principle of law, as correctly stated by learned counsel for appellant, that the courts will more readily sustain a devise by implication to children upon arriving at age or marriage, where some beneficial interest had been given them during minority, than where no interest of any kind has been given them. Authorities are cited to this principle, and it is a sound principle within proper limitations, but it must be carefulh guarded in its application to the terms of each particular will considered. It is very likely to be overstressed in the case of a will where it is plain that the children are mentioned in merely stating a contingency, upon the happening of which the devise over will take effect. Of course, wherever this last sort of provision clearly appears, there cannot possibly he g.ny devise by im: plication; bnt where the devise by implication is to be maintained or not upon nothing but the naked test whether any interest is express and given to the children during minority, it is a test of exceedingly dangerous and delicate application, and it will be found on a careful examination of authorities that a devise by implication to children on arriving at age or marriage is maintained in many cases where there is nothing in the will to show any present interest devised to them, equitable or legal, during minority, such implication in such cases being worked out by the court as the plain result of the whole scheme or frame, of the will of the testator.

We have most carefully and anxiously weighed the three expressions in the will from which learned counsel for appellant argue the implication must be derived, if it is derived at all, and, whilst the reasoning is exceedinglly ingenious and well supported as to the abstract principles announced, it is clear that, looking to the frame of this will, its manifest scheme and • design and purpose as a whole, there is discoverable upon its face the purpose to benefit these children, and there does arise a necessary implication of a remainder in fee in these children. Finally, the learned counsel for appellant most earnestly insist that the intention of the testator must be ascertained from- the decisions of the supreme court of Tennessee, the state of the testator’s domicile, and the learned counsel for appellee apparently concede this contention in its entirety. The rules of construction and interpretation are very accurately set forth in volume 22 of Am. & Eng. Ency. of Law (2d ed), at page 1366 ■ei seq. The land in this case is in the state of Mississippi. Nothing can be better settled than that the title to real estate is governed solely by the law of the place where the property is situated, but it is said'correctly on page 1307, (b), as follows, touching the particular rule involved: “Where the inquiry, is directed solely to the ascertainment of the meaning and intention -of the testator from the language employed by him in the will, the lex domicilii controls.” In note 3 to this section it is said, referring to the principle that the title to real estate given by will is governed by the law of the place of the situs, that a different rule seems to obtain in Mississippi, since there it was held, in Crusoe v. Butler, 36 Miss. 173, that “the nature, obligation, and interpretation of the instrument, and the rights and powers, arising under it,” must be determined by the law of the domicile. This is a just criticism of that case, in so far as the words “rights and powers arising under the will are concerned,” for the court evidently mixed the two rules' of construction in that inaccurate language. In volume 30 of Am. & Eng. Ency. of Law, at page 602, it is said: “It is also the legal, not necessarily the actual, intention, which governs.” This is a confusing and misleading statement, as the authorities cited show. The principal case referred to under this citation is the case of Martindale v. Warner, 15 Pa. 471. That case was just this: The testator made a will by which he devised the remainder of his estate to two brothers as residuary legatees, and they both died before he did, leaving children. At the time of the making of' this will the law was that these residuary legacies lapsed, and did not go to the children of the residuary legatees. But the legislature passed an act, after the will was made on May 6, 1844, changing the rule so that the children would take. The testator lived long after this law was passed. This law on its face provided that it should apply only to wills made after its passage, and the court held, of course, that the law in force at the time of the making of the will governed. The court said, on page 480: “I do not put the case on the actual intention of the testator, but on his legal-intention, which is the only safe-rule. That the testator permitted his will to stand without alteration for several years, or that he may have known of the act of 1844, is nothing. It is a question of construction, depending on certain fixed principles, which ought not to be varied by fancied speculations as to the knowledge or ignorance of testators, some of whom may, or others may not, know of the statute and its legal construction.” It is perfectly obvious that ‘all that the court meant in this case, and that all that the court meant in the Crusoe case, and in the other three Mississippi cases cited, and in all cases announcing this particular principle about the differencé between legal intent and actual intent, is, as stated in the passage above cited from volume 22 of Am. & Eng.. Ency. of Law, that where the inquiry is solely to ascertain the intention of the testator, from the language employed by him in the will, what the courts of the state of his domicile have said those words will mean, will control. What the courts will concern . themselves about, wherever a will is under review, is the ascertainment of the testator’s actual intention; what he himself meant, not what the law presumes him to have meant. In strict reasoning, a testator can have but one intent—his own actual intent To speak of a testator’s legal intent is strictly a solecism ; there is no such thing. So that, when it is said that a testator’s legal intent is to be gathered from the decisions of the court of his domicile, nothing more is meant than that whatever his actual intent may have been, if he has used in his will certain technical terms to which the courts of his domicile have attached a crystallized and settled judicial meaning which has become a rule of property in that state, then such will, where-ever it comes under construction in other states, will have the same meaning given to those technical vrords which the courts ■ of his domicile gave them. That is absolutely what this phrase “legal intent” means, and this rule about the legal intent being governed by the courts of his domicile means. In .truth, we should not speak of anything but the testator’s actual intent, for that is all the testator ever had, so far as he is concerned. If that intent violates no law, it stands; if it violates the law, the will fails; unless the legislature has arbitrarily said, or the courts have by long construction said, notwithstanding his actual intent, a certain meaning shall be given to certain technical terms which he has used, which meaning shall save the will, although it may result in a different disposition from that which he intended. ' This principle finds no better illustration than in the now long-settled rule of construction, flowing from legislative enactment,' that the words “children,” “heirs,” etc., which import at common law an indefinite failure of issue, shall not import an indefinite, but a definite, failure of issue, etc., making the words “issue,” etc., mean issue, etc., living at thé timé of his death. In all such cases the actual intent was to create an estate tail, but the law, to save the purpose of the testator ás far as possible, makes the failure of issue definite, and thus prevents an estate tail arising by construction. Now*- this legislative 'declaration, followed by judicial construction, is what all these books mean by the legal intent, but it is plain that the phrase “legal intent” is a misuse of words, and that what is meant by the legal' intent of the testator is simply the intent of the law; that is to say, the meaning tire law imputes, whether the legislature or the courts, to the technical-terms he has used in his will, not knowing their legal effect. In other words, where the testator has an actual intent that the law cannot effectuate, the law, in order to effectuate it as far as possible, gives to technical terms in his will a meaning that should save it so far as possible; but to call this construction of the law a legal intent of the testator is, as stated, purely and simply a solecism. There is no such thing as the testator’s legal intent in this sense; so that the rule invoked by learned counsel for appellant means nothing more than that where,.in a will, a testator has used certain technical terms, which terms have acquired, in the domicile of the testator, a fixed and unchangeable meaning, thus becoming a rule of property, ‘these terms in such will, in whatever state the will is up for construction, shall be given, in the interpretation of the will, the meaning that would be given them hy the courts of his domicile. The United States supreme court well said in Smith v. Bell, 6 Pet. 68, 8 L. Ed. 322: “The construction put upon words in one will has heen supposed to furnish a rulé for construing the same words in other wills, and thereby to furnish some settled and fixed rules of construction which ought to be respected. We cannot say this principle ought to be totally disregarded, but it should never be carried so far as to defeat the plain intent, if that in; tent may be carried into execution without violating the rules of law. It has been said truly that cases on wills may guide us as to general rules of construction; but unless a case cited be in every respect directly in point, and agree in every circumstance, it will have little or no weight with the court, who always look upon the intention of the testator as the Polar Star to direct them in the construction of will's.”

Now, the two cases cited from Tennessee, Owen v. Hancock, 1 Head, 563, and Nott v. Fitzgibbons, 107 Tenn. 54, 64 S. W. 26, do not construe wills ‘at all identical in their terms with the will under review here. What are those cases ? Owen v. Hancock was this: A testator devised to his daughter, Mary Cooper, a negro named Celia during her lifetime, and, if she should die without any heirs born of her body, the said negro girl and her increase should return to his estate and be equally divided among the rest of his children. The first thing to be noted is that the words “heirs born of her body” are strictly words of entail, which would, under the old construction, create an estate tail; whereas, the words “children” in this will plainly moan the direct descendants; that is to say, the children only of Julia, and import a definite failure of issue. Second, in that case there was no ulterior limitation over to strangers to the blood of the testator; here, there is. Again, the court in that case expressly held that there was no difference as to raising the implication between the case where the first taker took an absolute interest, and where he took only a life estate. We have shown that this is not sound. The court reached the curious result in that case of first denying that there was any devise by implication of the remainder to the children of Mary Cooper, and yet in the face of a positive provision that her interest was limited to her life did raise a devise by implication of the fee to Mary Cooper, in the very face of the express declaration that she was to take only a life estate. However correct the result reached in that case, it seems to us it would have been far sounder, since an implication was to be raised, that there should have been an implication in favor of the children. In the case of Nott v. Fitzgibbons, while following the case of Owen v. Hancock, in another case where the estate was directly, given to James Fitzgibbons for his life only, holding that this life estate in the son was enlarged by implication into a fee in the son, the court also proceeded to rest its judgment upon another line, which was this: It quoted from Nachell v. Welding, 8 Sim. 4, a devise to a son. for life, and if the son should die ^without issue, then over, and approved an announcement from that case to this effect: “That whether an estate be given in fee, or for life, or generally without any particular limit as to duration, if it be followed by a devise over, in case of the devisee dying without issue, the devisee would take an estate tail;” and the court actually held, as we understand it, that because the devise to James Fitzgibbons provided for a devise over, in case he should die without issue, that, therefore, that was the devise of an estate tail, and so it ,was converted under their statute, into an estate in fee in the first takór, James, who might, therefore, lawfully alien the property, and this, too, although there was at the time a statute in the state of Tennessee like our statute, construed in Banking Co. v. Field, 84 Miss. 646, 37 South. 139, providing that the words “without issue” in such connection would mean without issue living at the time of his death, which legislative construction, of course, prevented the arising of an estate tail under the old rule. It is obvious that this decision, resting upon the old construction and ignoring the statute, can have no influence upon this will, where the limitation over is upon the death of the life tenant, “without children, or if the children die unmarried and before the age of twenty-one,” which expressions clearly import a definite failure of issue. They are words of purchase, and not of descent. They are not used interchangeably with the word “issue,” as was the case in Jordan v. Roach, 32 Miss. 481. It is obvious that iu both Owen v. Hancock, and Nott v. Fitzgibbons, the Tennessee court held there was no intestacy, and did raise a devise by implication by enlarging the life estate into a fee. In this case it is clear that there is no intestacy from the whole frame of the will, but the implication from all the language in this will is as clear as can be of a remainder in fee by implication to the children. To- hold here on the terms of this will that the life estate of Julia was enlarged into a fee is to fly in the face of the positive declaration, thrice iterated by the testator, that Julia was to have only the life estate, and thus to make for the testator a will, instead of construing one that he did make.

One other observation is due to be made about the case of Nott v. Fitzgibbons, supra,, which is that that case was not decided until years and yeárs after the death of this testator, and could not possibly have been in his mind at the time of the making of his will; and with respect to Owen v. Hancock, supra, •thei'e are one or two very important things to be further said: First, the case of Owen v. Hancock cites 2 Powell on Devises, 602, 20 Law Library, 321. The whole context of this citation has reference to the subject of estate for life where enlarged into an estate by implication. The "author says: “It has long "been settled that a devise to a person with a limitation over, if he die without issue, confers an estate tail. But, according to .some early cases, an express estate for life cannot be so enlarged into an estate by implication, on the ground that implication •can only be admitted in the absence of, but never in contradiction to, a<n express limitation.” Again the author says, to which we call special attention: “It is to be observed that where the terms of a devise over refer to issue living at the death, it has no effect in-enlarging a prior estate for life to an estate tail. The only question in such case would be whether they would raise an estate by implication in the issue living at the death'.” Now, this is the emphatic declaration of Powell in his work on Devises, in the very sections quoted by the supreme court’ of Tennessee in the case of Owen v. Hancock. It must he perfectly obvious, therefore, that the supreme court of Tennessee could not have meant .to hold that where in a will the failure of issue is definite, and where the first taker is thrice limited to a life estate, such life estate in the first taker is by implication enlarged into a fee. The supreme court of Tennessee never has yet held that, and we do not think ever would. Indeed, in this -very case of Owen v. Hancock, the supreme court says, 1 Head (Tenn.), 566: “A devise over after the death of the wife, or the arrival" at age of a child, without expressly giving them any estate, would -confer, by necessary implication, an estate for life or during minority.” It seems clear, therefore, that the Tennessee authorities never have held what learned counsel for appellant claim, where the will made the failure of issue definite. For that reason, and two other reasons, they do not bind us: First, because the terms of the wills construed there are not identical or substantially like the terms of the will here; taking all its terms into view as we must; second, because the only effect of the rule in construing a will made by one domiciled in Tennessee that we are bound as to the intent of the testator by what the courts of his domicile say, is that we axe so bound, not as to his actual intent, but as to what the technical terms he may have used in his will mean, where that meaning has been crystallized into a rule of property; whereas, here in this will, taking as a whole, there is no room for the play of this doctrine of construction of the will from the meaning of technical terms. The actual intent of the testator here is plain that Julia shall take an estate for life only. There is here a manifest definite failure of issue, and there are other provisions of the will, to wit, the ulterior limitations over to strangers to the blood of the testator, and the provision seeking to cut out the1 husband, which are decisive against the view which is urged by the counsel for appellant.

■ On the whole case, it is clear from the entire frame of this will, looking at all its parts and giving every word its due force, that this testator intended these children of Julia to take a remainder in fee. The implication is necessary from the whole-scheme of the will; no other rational purpose can he assigned to the testator; and this opinion is closed with the exceedingly striking and forcible and apt language of Lord Brougham in Langston v. Langston, 2 Clark & Finnelly, 194. In that case-the scrivener had, by accident, omitted a line in the will providing an estate for the first son. It was conceded that no estate-whatever was given by the terms of the will, and that the court could not reinstate the omitted clause. Lord Brougham, in delivering his opinion giving the eldest son an estate by implication from the construction of the whole will, among other things said: “The third of the reasons is one which, I cannot help feeling to be exceedingly powerful, and which, upon all the views I can take of this subject, presses forcibly upon my mind. The existence of a son is to defeat no less than eight terms raised most carefully, artifically, and anxiously by the person who-penned this instrument; and yet that son; whose existence is to produce such an effect, to create such destruction, to deal about such havoc upon the whole of this will, according to the construction set up by the King’s Bench and by the appellant, not to-benefit it in the slightest degree. My lords, it is monstrous to suppose that any rational person could really intend to make so much depend upon the event of a person coming into existence, which person, nevertheless, wras to be of no force, of no effect, of no value in his eyes, except to be used as an instrument of destruction ; that he was only to be considered as the means of taking away the benefit of other parts of this instrument, yet was himself to benefit nothing by that destruction.”

This case has been argued with the most consummate ability by learned counsel on both sides. We acknowledge ourselves greatly indebted to them. The result is that, since the action of the court below in overruling the demurrer is in accord with the-views herein expressed, the decree of the court below is hereby affirmed, and the cause remanded for an. accounting.

Affirmed.

Case Details

Case Name: Ball v. Phelan

Court Name: Mississippi Supreme Court

Date Published: Oct 15, 1908

Citation: 47 So. 956

Court Abbreviation: Miss.