Davenport v. Collins

48 So. 733 | Miss. | 1909

Fletcher, J.,

delivered the opinion of the court.

One Washington S. Burch, a citizen of Jefferson county and a gentleman of large means, made a will in 1843, undertaking to dispose of a large amount of landed property. This controversy involves the proper construction of the third and fifth •clauses of the will.

The third clause is as follows: “It is my will and desire that all of my estate, both real and personal (except such as is particularly excepted, and otherwise disposed of in this will), be equally divided between my beloved wife, Adaline Burch, and my three children, to wit, Isaac W. Burch, Eliza Jane Burch, and Mary Burch, share and share alike, and I do give and bequeath to them the same in equal proportions as aforesaid, to be theirs and each of theirs during their natural life, and to the children and heirs of their bodies, if any they have at the time of their death; if not, the same shall revert to my estate in gross and be again divided between my said wife and children, or such of them as shall survive, and to their heirs, share and share alike, they to take a life estate in the same only; and all the children of my deceased children (if any) to take only such share as their deceased parent would have taken; but, should any of my said children die without issue before such division, such division to be made among the survivors of my said children and my said wife.”

The fifth clause is as follows: “It is my wish that my wife remain in possession of the plantation on which I now live, and that she have the use of the household and kitchen furniture and stock, for and during her natural life, and that neither shall be divided among the heirs without her express assent until after her death, when the same shall be divided as hereinbefore provided in regard to other property, equally among my children.”

By another provision of the will the wife was given the right to withdraw her share of the estate at any time she might desire. Mr. Burch, at the time of the execution of the will, had only the three children, mentioned in clause 3 of the will, and all of these children in 1843 were unmarried infants. By the sixth clause of the will any one of the children, upon attaining his majority, could have his share set aside to him.

The property in controversy is the home mentioned in the fifth clause. After the death of Mr. Burch, the widow remarried and withdrew her share, and at a later time, by appropriate proceedings, the home place was set aside to Eliza Jane. Miller (neé Burch). Mrs. Miller died in 1907, and her children, contending that their mother had only a life estate, with remainder to themselves, brought this .suit against the perr sons now in possession, who are the successors in title to the vendees of the children of Washington S. Burch, who in 1856 had all joined in a deed to one Davenport, purporting to convey the fee-simple title. From a decree in favor of complainants, this appeal is prosecuted.

It will thus be seen that the question here for decision is whether the children of Burch, under the will, took the fee-simple title, or whether they took as life tenants, with remainder to their children. If the first be the correct view, that title has by the deed of 1856 passed to appellants, and they must prevail. If the second view be correct, then the grantees in the deed of 1856 took only the interest of Mrs. Miller, which was an estate terminable at her death, and appellees must win. It is here earnestly insisted on behalf of appellants that the fifth clause of the will is independent of the third clause, and that by the provisions of the fifth clause, standing by itself, the home place is to be divided among the children, without regard to the limitation for which the third clause provides. But we are unable to resist the conclusion that the phrase “as hereinbefore provided” refers this property back to the controlling provisions of the third clause, subject to all its restrictions and limitations. We do not elaborate this view, since, as we think, appellants must prevail upon another and distinct view.

We come to consider the meaning of the third clause. It is, of course, perfectly obvious that the testator by this clause created life estates in his wife and children, with remainder to their children; and, if this were the only provision, of course, appellees would now be entitled to the property, the life tenancy having terminated. But the will further provides that, in case any of the children shall die without “children and heirs of their bodies,” then the share of such deceased child shall revert to the estate in gross, to be again divided “between my said wife and children, or such of them as shall survive, and to their heirs, share and share alike, they to take a life estate in the same only; and .all the children of my deceased children, if'any, to take only such share as their deceased parent would have taken.” It will thus he seen that, if the language of the will is to be construed according to its ordinary grammatical meaning, any property subject to a second division would be divided, not only among the survivors of that class designated as “wife and children,” but also among the children of any deceased child, such grandchildren of the testator to take as life tenants, with remainder to the bodily heirs of such grandchildren, if any there be. Looking only to the language of 'this clause, we can see no reason why the word “they,” in the phrase “they to take a life estate in the same only,” does not refer to the heirs of the “survivors,” as well as to the survivors themselves.

But it is said, and correctly said, that the will must be taken by the four comers, and rigidly examined as to all its provisions, in order that the intent of the testator may be thereby discovered, and, if such general intent appear, then the particular language of the third clause will be wrested from its plain, ordinary, and grammatical meaning, in order that the intent of the testator may prevail. We recognize the soundness of this rule of construction, and have searched this will in its every line and expression for evidence of any intent to have the creation of life estates stop with the wife and children. There is no such expressed or implied intention, as we view it. Indeed, there are, here and there, scattered throughout the will, 'indications that the testator meant to do precisely what the language of the third clause obviously imports. Thus the eighth clause, dealing primarily, it is true, with personal estate, is a clear effort to restrain alienation. So that we are without evidence of any intention on the testator’s part at variance with the language of the third clause, taken in its usual sense. It may be said that it is a canon of construction that the will should, 'if possible, be so construed as to give effect to each of its provisions. This is true, but none the less is it the duty of the court to defeat a provision of the instrument which is forbidden by law, especially when it fairly appears that the testator intended to incorporate that precise feature in his will. We are clearly of the opinion that the intention of the testator, as gathered from the language of the will, was to provide for a contingency upon the happening of which life estates would be created in the testator’s grandchildren, who were not in being at the time of the execution of the will. We remark here that it is evident that the words “heirs” and “bodily heirs/’ as here employed, are used in the sense of children. Banking Co. v. Field, 84 Miss. 646, 37 South. 139.

This conclusion being thus reached as to the meaning of the testator’s language, the case is ended; for it was the law in 1843 that: “Every estate in lands or slaves, which now is or shall hereafter be created an estate in fee tail, shall be an estate in fee simple ; and the same shall be discharged of the conditions annexed thereto by the common law, restraining alienations before the donee shall have issue, so that the doneej or person in whom the conditional fee is vested or shall vest, shall have the same power over said estates, as if they were pure and absolute fees: Provided, that any person may make a conveyance or devise of lands to a succession of donees then living, and the heir or heirs of the body of the remainderman, and in default thereof to the right heirs of the donor in fee simple.” Hutch. C'ode, c. 42, art. 1, p. 609, § 24. It will readily be seen that the will under consideration, as above construed, violates this statute, since it provides for the creation of life tenancies in donees not living when the will was executed. Indeed, it is not disputed that the will, if construed according to our view, violates the statute against perpetuities, and that the attempt to create life estates was futile. Since the children were invested with the fee-simple title, that title passed to appellees and- their predecessors in title by the conveyance of 1856, and appellants have no claim to the property.

Reversed, and bill dismissed.