Bullard v. Bullard, No. 23257

No. 23257 | Miss. | Jul 2, 1923

Cook, J.,

delivered tbe opinion of tbe court.

This is ah. appeal from a decree of the chancery court of Noxubee county, construing the will of Mrs. Ellen Beirne Saunders, deceased.

The testatrix, Mrs. Ellen Beirne S'aunders, a resident of the city of Baltimore, Md., died about the 25th day of November, 1889, owning at the time of her death a large tract of land located in Noxubee county, Miss. On August 8, 1887, she executed her last will and testament, and on December 13, .1889, this will was admitted to probate and was recorded in the office of the register of wills in the city of Baltimore, a duly authenticated copy of which will, together with all the proceedings for the probate thereof, was on proper petition, admitted to probate and duly recorded in Noxubee county, Miss. At the time of the execution of the will the testatrix had four children, Mrs. Ellen Beirne Saunders Bullard, Mrs. Martha Bland Carroll, Mrs. Sidney Saunders Vernon and William Turner Saunders, the devisees designated in the will. All four of her children survived the testatrix, but at the time of her death none of them had children. William Turner Saunders and Mrs. Sidney Saunders Vernou have never had children, but Mrs. Ellen Beirne Saunders Bullard has -one son, while Mrs. Martha Bland Carroll has two sons and one daughter. The four children of the testatrix are the complainants in the bill filed herein, and the children of Mrs. Ellen Beirne Saunders Bullard and Mrs. Martha Bland Carroll are defendants. The bill of complaint charges that the will violates» the statute of the state of Mississippi against perpetuities and vests complainants with a fee-simple title to the land devised under the will, and it seeks to have the court so construe the will. The original will presented for construction, omitting the formal parts, reads as follows:

“I give and devise to my children, all my property, of every kind and wherever situated, for and during their natural lives equally to be divided among them, share and share alike. And after their deaths respectively to go to their children, then living, or born to them within ten calendar months, but should either of my children die without issue, his or her share of my estate shall go to my surviving children, share and share alike.”

The statute of this state which was in force at the time of the death of the testatrix was section 1190 of the Code of 1880, which reads as follows:

“Estates in fee-tail are prohibited; and every estate, which shall be created an estate in fee-tail, shall be an estate in fee simple: Provided, that any person may make a conveyance, or a devise of lands, to a succession of donees then living, not exceeding two; and to the heirs of the body of the remainderman, and in default thereof, to the right heirs of the donor, in fee simple.”

In construing this will it is the duty of the court to ascertain the controlling intention of the testatrix and to enforce such intention, provided it is lawful, and it is the duty of the court to so construe the will, if possible, as to make the instrument valid. The intention of the testatrix is to be ascertained from the whole will, and from a consideration of all the provisions of the instrument taken together, and, if the language of the will is clear, definite, and unambiguous, the court must give to the language its clear import. If, however, the language of the Avill is reasonably susceptible of two different constructions, one of which will defeat and the other sustain the provisions, that construction should be adopted which wall sustain and uphold the Avill in all its parts, if it can be done consistently Avith the established rules of law.

In the will now before us Ave think the intention of the testatrix clearly appears from the language of the will.' Recognizing her duty to her children, she first made provision for all of them, not as individuals, but as a class as tenants in common, each one of her children to take an equal share in all her property for and during their natural lives. The next sentence of the will .deals only with the vesting of the fee of all her property, and it first provides that at the death of any one of her children the share of such child should go to his or her child or children then living or born within ten calendar months. •From this it is clear that it was the purpose of the testatrix to give an equal life estate to each of her children, with remainder in fee to the children of each life tenant. After providing for the vesting of the fee of the share of each life tenant, in the event such life tenant shall leave surviving children, she next provides that in the event any one of the life tenants shall die without issue his or her share of the estate shall go to the surviving life tenants, share and share alike. This last clause seems to be the only provision of the will about which there is any controversy, and it appears to us to be the only one Avhich presents the slightest difficulty. This clause is a part of the sentence in the will which undertakes to provide for the vesting of the fee of the entire property of the testatrix. It is perfectly manifest from the first part of this sentence that it was the intention of the testatrix that the child or children of each life tenant should take the remainder in fee after the. life estate of the deceased parent, and we see' no reason to conclude from the language of the last clause of this provision that it was the intention of the testatrix that less than a remainder in fee should pass to the life tenants who survived the death of a tenant in common of the life estate devised. On the contrary, we think it was her intention that a remainder in fee in the share of any one of her children who should die without issue should Arest in the surviving children of the testatrix, share and share alike as tenants in common.

Under this construction the will does not violate the statute, and, since the learned chancellor held in accordanee with the views herein expressed, the decree of the court below will be affirmed.

Affirmed.