Harkleroad v. Bass

| Miss. | Mar 15, 1904

Truly, J.,

delivered the opinion of the court.

The twelfth clause of the last will and testament of Hiram S. Harkleroad is as follows: “12. I give and bequeath to my son Daniel all my real estate, to have and to hold the same during his natural life, and should he have any lawful issue at his death, then I will to his heirs forever, and should my son Daniel die without heirs, then in that case I will all my estate, both personal, mixed, and real, to my grand-niece, Kate Williams, and to her heirs forever.” At the date of this will Daniel Harkleroad was an infant, about five years of age. He lived for some years after his father’s death, and died unmarried and leaving no lawful issue. At his death the appellee, Kate Williams, now Bass, the grand-niece of Hiram S. Harkleroad named in the clause recited, entered • into possession of the lands which the said Daniel took by devise from his father*. At his death Daniel left surviving him the said Kate Williams, his cousin in the second degree, and nine first cousins, nieces and nephews of Hiram S. Harkleroad. This suit was instituted by tbe said nepbews and nieces, averring that, as the nearest of kin in degree to the said Daniel, they inherited to the exclusion of the said Kate Williams. The sole question presented for decision is as to the true interpretation of the twelfth clause of the will of Hiram S. Harkleroad.

Appellants, complainants below, contend that the devise of the estate of Kate Williams made by the said clause, in the event Daniel Harkleroad should die wthout heirs, is ineffective because the contemplated contingency did not arise; that the devisee of the life estate did not die without “heirs” in the legal signification of that term, and therefore the limitation over fails. So, appellants arg’ue, they are the heirs at law of Daniel Harkleroad, and, as collaterals nearest in degree, they inherit to the exclusion of other kin more remote. This contention is predicated of the generally recognized rule of interpretation which is concisely and accurately stated by Campbell, J., in Irvine v. Newlin, 63 Miss., 196, where it is said: “The jiroposition deducible from the authorities is that, prima facie, the word ‘heir’ is to be taken in its technical sense, unless there is in the will a clear demonstration that the testator used it in a different sense, in which case effect will be given to his intention.” This statement of the rule cannot be improved.

The inquiry for our determination is whether the testator intended to attach a special and different meaning to the term “heir” as used in this clause of his will. Unless such intention is manifest, it is presumed that the testator employed technical words in their legal sense. Jarman, Wills, vol. 3, p. 707. An examination of the will now being considered demonstrates that the main object which the testator sought to attain was to amply provide for his only son during his life. Several different provisions’ of the will evidence his great solicitude on this point. Having guarded the interests of his son Daniel, so far as human foresight enabled him, the testator then states what disposition he desires made of his estate after tbe death of his son. His wishes are plainly set out in the twelfth clause of his will: (1) He bequeaths to his son Daniel all his real estate, “to have and to hold the same during his natural life.” (2) Should Daniel have “any lawful issue at his death,” the estate vests in “his heirs forever.” (3) Should Daniel die without “heirs,” the estate is to go to his grand-niece, Kate Williams, and her heirs forever. Subjected to analysis, the clause demonstrates that the testator used the term “heirs” to convey the meaning of “lawful issue.” If, says the testator, my son has “lawful issue” at his death, his “heirs” shall inherit. What heirs? Manifestly the lawful issue surviving him. If, however, the son dies without heirs (described in the preceding sentence of the same clause as “lawful issue”), then the grand-niece of the testator and her heirs inherit. No other construction will harmonize the several distinct provisions of the clause. To our minds the conclusion is inescapable that this clause devised a life estate in the lands to Daniel, with a limitation over to the heirs of his body who, lawfully begotten, might survive him, and in default thereof to Kate Williams and her heirs forever. That this was the real intention of the testator is demonstrated by the text of the will.

The unsoundness of appellant’s contention that the word “heir,” in the connection now being considered, is to be given its technical, legal meaning, becomes the more apparent when it is noted that the devisee of reversionary interest after the termination of the life estate was herself an “heir,” in the legal sense of that term, to the holder of the life estate. If Daniel died without “heirs,” Kate Williams was to inherit. But, if appellant’s interpretation be correct, Daniel could not possibly die without heirs so long as Kate Williams lived, for she was herself an heir, in that sense, both to Hiram and Daniel. Hence to adopt the construction urged by appellant would be to render the clause contradictory within itself and inoperative; whereas, if the term be interpreted in the light of the context, it effectuates the intention and desire of the testator, and vests the estate in the person expressly selected and named in the will. That this conclusion is in accordance with the almost universal current of decision, see the careful, full, and discriminating citation of authorities in the excellent brief for appellees.

The decree is affirmed.