*1 adjudged competent consider been do not witnesses. We testimony, competency proposed here the nature or holding in that the connection, which latter our former resting solely upon an contract suit is not oral one may point. Dr. be found Johnston, and remanded. Eeversed Dockery. et
Everett al. v. (In January Suggestion Part, of Error Banc. 1948. Sustained 9, 1948.)
February (2d) 313. No. 36634.] [33 So. *2 (2d)
See So. 832. Neill, appellant, Townsend, Indianola, Clark & for guardian Arthur ad litem for B. minors. Clark, appellants, Sanders, Everett & Indianola, for Cherry minors. *3 Ethridge, Wm. N.
Wells, Wells, Newman & Thomas and Dockery. Rice for Joe Jr., Jackson, all appellee, *5 Dulaney, appellee, J. W. for Mrs. Frances Tunica, Dockery Cherry. opinion
Griffith, J., the eonrt. delivered the During A. Mr. W. times hereinafter mentioned highly planter Missis- successful *6 sippi large plantations in Delta. He owned two Sun- County, together property flower with considerable other in in 19, this made 1921, and other states. On March he holographic his will in of his form. At that time two living children, Rice, Frances and Joe were and were un- only yet The a lad, married. other child had while died years and the testator’s had died wife some before. On August Dockery Mr. 1, added a codicil his will. 1930, to daughter At the latter time the Frances had married hut had children. son, no The Joe was still Rice, unmarried. present grows litigation paragraph
The the in out of together the with will, codicil, the which is as follows: my only daughter darling “I The will: will to Frances Dockery being plantation, the or all home in 22-4 lands Miss, including together Sunflower Co. the tract Sims place. gift with & the mules feed on said This how- % subject her ever is for & children & is not to sale nor her acquire any does her husband in interest this at all. land my darling boy I Long will to Joe Rice land the on Lake in 23-4 & Sunflower Co. Miss. the mules and feed on % gift place. gave This is on same terms as I his subject mortgage is, bim sister, that not to sale or to but death and at his to his children. Should either child die surviving issue, the without child or child’s children shall ’’ property inherit the of the other. my “I will things The codicil: made Mch & have 19/21
changed lota since and this is a codicil to it. Instead of taking Dockery place the I Frances want Joe to have it & the Lake I Place, Frances have and want the Sims place (place acres) given & Durham & 120 my to Manager 'my H. way & Gr.Jett. I friend am on to New may & not come hack.” Brunswick questions daughter are, first did The the son and take simple property an fee to each estate the devised to they by quoted paragraph, or did respectively the them second, and, over; remainder each a take life estate change respect. any operate in that the to work did codicil Rice plain to Joe quite that devise It us the seems to ‘‘ at only. him and to are The words life estate was difference no real see his We his death to children”. Selser, language v. in Hubbard that used and this between my give to sons “I and devise 44 Miss. which Eugene after their lawful children and to James and plantation I re- whereon now . . . the their decease a life estate and took that the sons side”, it was held —and no more. language that states as the testator
And inasmuch anything scarcely reason, to within mean, be made could terms son on the same the is than devise to else that together, that sister, which, taken is that to the son’s as terms that sister is on the same as the son’s the devise to is to Prances one for it that the devise son, follows to *7 simple. and not in life fee strengthened by use of are the words
These conclusions mortgage power of or which would the sale of restrictive inoperative simple if was as Mr. intended, a fee title be Dockery, although lawyer, a must a
not have known as general we sense. And think he made of business matter only a life in his son and to create estate his intention by express provision daughter that further manifest the surviving issue, die without the either child “Should property shall inherit children the the child or child’s of appropriate provision a cross-remainder, to other,” —a simple a title fee in the son inconsistent and and daughter. question, opinion we are of to second the that
As
the
change
change
was
not
and
not
to
codicil did
intended
the
the
daughter
quantum of the estate which
nature or
the son
and
simply
will,
to take under the
but was
were
to
property
interchange
which
was
the
each
to take. On
Vaughan
inquiry
Bunch,
v.
we think
That surviving the child or child’s issue, child die without property shall inherit other.” The children question may adopted brought then, children be within is, In it the term v. 32 Miss. Roach, Jordan 481, “issue”. clearly term was said that the “issue” unless restrained by interpreted comprising to as all the will is be who Page may as In Wills, Ed., claim descendants. on 3d primary that issue a it stated is word whose Sec. meaning anything contrary in the absence of *8 to show legitimate is that of lineal intention descendants inde- ' finitely. adopted It does not include an child unless the it context that was meant to include such a shows child. p. seq. et Wills, also Underhill on 910 See and on Jarmon Ed., 6th 1590. Wills,
134 correctly think it was in v. New
We stated Newcomb Ky. ample 198, of comb, S. W. citation par that authorities, the the term “issue” common generally by community signifies and lance as used the certainly adopted descendants, lineal children are —and pp. lineal J., not descendants. also 69 C. 195-201. See by holographic non-pro this will Inasmuch as was a interpret testator, we fessional must take care to his language in accordance with what meant is in common parlance, by quoted must and we therefore that the hold adopted term was meant lineal descendants and not by process those children children —not made lawof but by those made so nature.
Reversed and remanded. SuggestioN oe Error.
On opinion J., Alexander, delivered the of the court on suggestion of error. suggestions reargued
The of error the issues decided opinion. our We have re-examined these matters care- fully and find no occasion to the amend views there ex- pressed. suggested, by appellees, by is
It however, the that our impliedly displaced reversal of the cause we the decree of by upholding adjudged chancellor, the who, will, the the property by residuary to the title covered the clause and otherwise. This, course, not so but intended, this phase by emphasis placed of the decree was obscured the upon relating the issues the to title to the and Long Lake adopted Plantations, and the status of the Cherry. children of Mrs. correct
To this omission and confine our decision and solely hereby order to the mentioned, issues last we amend our order to so as affirm the chancellor’s decree in all respects except as involving to these two issues Dockery Long Lake Plantations and the status & adoptees. aforesaid part.
Sustained in