Goosey v. Goosey

48 Miss. 210 | Miss. | 1873

SlMRALL, J. :

The complainants claim the property m controversy as remaindermen, after the termination of the life estate of their deceased mother, under two deeds in trust, mentioned in the pleadings.

The defendants, judgment creditors of Peter C. Goosey, the father of complainants, and surviving husband of their mother, claim that the deeds conferred upon Mrs. Goosey, the beneficiary, a power by last will to dispose of the property, and that she did execute a will, giving the property to her husband; and that it is subject and liable to the satisfaction of their judgments against him.

The deeds in trust, executed by Lambden and the Planters’.Bank to Richards, contain thése trusts: that Mrs. Goosey shall enjoy the increase, rents, issues and income of the property, for the support of herself and children; and if she should die before her husband, Peter Goosey, then the property to descend to and be equally enjoyed by the children — the issue of a deceased child to take the share its parent, if living, would have been entitled to. By another and subsequent clause of the deeds, power is conferred upon Mrs. Goosey to dispose of the property by last will and testament, if she should die before- her husband. In the construction of written instruments the cardinal rule first to be applied is to give to the words their ordinary and grammatical meaning, and then to gather from the entire instrument the intent of the parties. The whole contract must be considered, in determining the meaning of its separate parts, so that, if practicable, harmony and congruity may be attained. The parties make the entire contract, and must be supposed to have the same general purpose and object in view in all its parts; if, therefore, some of the' stipulations are more obscure than others, if one part is seemingly inconsistent with another, the main purpose and object may be so clear and distinct as to afford light upon those parts which are less so. It was very felicitously expressed by Lord Ellenborough, in Barton v. Fitzgerald, 15 East, 541: “ It is a true rule of construction that the sense of the parties, in any particular part of an instrument, may be collected ex antecedentibus et consequentibus.” Every part may be brought into action to collect from the whole one uniform and consent sense, if that may be done. So it was laid down in Duke of Northumberland v. Fitzgerald, 5 T. R. 522: “ It is immaterial in what part of a deed a particular covenant is inserted, for in construing it we must take the whole deed into consideration, in order to discover the meaning of the parties.”

It is urged by the appellants that the earlier clauses of the deeds gave an estate for life in the usufruct of the property to the mother, remainder to her children; that this intent is plain — and they invoke the rule, that if there be in a deed earlier clauses, which are repugnant and inconsistent with the later ones, the former shall prevail (Shep. Touch. 88; 2 Pars. Cont. 513); therefore, the conclusion is reached that such an estate, in remainder to the childern, is inconsistent with the later covenant, that if Mrs. Goosey dies before her husband, she may dispose of the property by a will. The rule invoked applies in a proper case ; if indeed the inconsistency be not so great as to avoid the deed for uncertainty. But such an election shall not be made between inconsistent covenants and clauses, if they can be made to harmonize with the general purpose and scheme of the parties as derived from the whole instrument. The recitals in these deeds disclose that Peter Goosey had executed a mortgage for the benefit of the Planters’ Bank, .that his wife had relinquished her dower in the mortgage property, and had otherwise been of great assistance about this business to the bank and its agent. Therefore, these deeds settle upon her a beneficial interest in the property embraced in them, for the support of herself and children, and free from' the debts of the husband. The primary intent was to give her the income for the maintenance of herself and children without let or interference, or marital control, or liability for the husband’s contracts. But there was conferred upon her a power during the coverture to make a testamentary disposition of the property if she died before her husband. If no such disposition was made, then the property should go to her children. This construction harmonizes all the parts of the deeds; the property is settled upon her through a trustee, to shield it from the marital rights of the husband; a power (if she died before the husband) to dispose of it by will is given to her. If, however, she chose not to exert it, then her children should take after her death, and not her husband.

Having, however, made a will in favor of her husband, that must prevail, unless the husband, on account of the marital relation, is incapciated to take under the will. Mr. Justice Story (Eq. Jur., vol. 2, § 1395), regards the law as settled, that the husband as well as a stranger may be the appointee. It is essential, however, that no undue influence be used, or advantage taken of the husband’s opportunities and marital relation.

If we are correct that the wife was donee for life of the usufruct of the property, with remainder to her children, in the event that she died intestate; or, to state the proposition in other words, that the remainder to the children was contingent upon her dying without making an appointment of the estate by will, then it follows that the contingent remainder has been defeated by the will, and the husband took the property as donee under the power.

There is no error in the decree. It is affirmed.