Hill v. Godwin

81 So. 790 | Miss. | 1919

Sykes, J.,

delivered the opinion of the court.

This suit originated by bill filed in the chancery court of Tippah county by E. L. Godwin, administrator c. t. a. of the estate of Jane Hill, and certain heirs of Jane Hill, against other heirs of Jane Hill. The principal purpose of the bill is to have the will of Jane Hill construed by the- court. The' real controversy in the case is whether or not the children of -Jane Hill by a former marriage should participate equally in her estate with her children born to her of a marriage with Sam Hill. A demurrer was interposed to the bill in the lower court. This demurrer was overruled, and an appeal allowed to this court to settle the principles of the case. The will in controversy is very short, and reads as follows:

“Will of Sam and Jane Hill.

» “April 5th, 1905.

“We, Sam Hill and Jane Hill, of the county of Tippah and state of Mississippi, being of sound mind and knowing the uncertainty of life, and that death is liable to occur at any time, make this our last will and testament; that we give ■ and bequeath all our property, both real and personal, at ■ our death as follows:

“The survivor of either of us to have and hold all the . property so long as they live unmarried, and if they should marry, then the property to he divided equal between all our ares, but at. our death, if neither should marry again, our-property and effects of every discription to b'e divided between our ares.

[Signed] Sam Hill.

JaNE Hill.

“¥. F. GodwiN,

“Mollee Lee Godwin, Witnesses.”

Before her marriage to Sam Hill, Jane Hill was .a widow and'had several children by her first husband. She and Sam Hill had six children as the result of their marriage. Jane Hill died before Sam. This will was duly admitted to probate as the last will and testament of Jane Hill, and under it Sam took and held possession of Jane’s separate property, which consisted entirely of personal property, during his life. At the death of Sam Hill this will was duly probated as his will. This controversy is between the children of Jane Hill by her first husband and her children by Sam Hill. The children of the former husband claim that they are entitled to their pro rata part of the separate estate left by their mother, Jane Hill. At the time of the execution of this will each of the signers of it owned separate property.

While two or more persons may jointly execute a single testamentary document, sometimes spoken of as a joint, double, mutual, or reciprocal will, it is well settled in America that this document constitutes the valid separate will of each of those executing it, and that on the death of each it may be probated as a will. This rule is fully and clearly stated in volume 1, Commentaries on Wills, Alexander, section 69, pages 83 and 84, as follows:

“In many decisions it will be found that testamentary dispositions are referred to as joint or mutual or reciprocal wills; this, however, is incorrect, for-no matter what the form of the will may be, and although two or more persons may jointly execute a single testamentary document, the instrument is the separate will of each testator, and its legal effect is separate and'distinct, and not joint. In this regard there cannot be a joint will.. Two or more persons can undoubtedly make separate wills in favor of each other or of some third party; but there is no legal objection to making the same* dis-" positions by one document. The law does not hold it to be a single will because all the. makers have subscribed the same instrument, or have declared it to be their last will and testament in the'presence. of the same witnesses and at the same time, but views it as the separate act of each. After the death of the one first dying, the instrument may be offered and proved for probate as his will, and the signatures, declarations, and acts of the ’others although they may be admitted in evidence as part of the res gestee, may be regarded as surplusage* in so far as proving the will of the one deceased is concerned. -The same testamentary document may thereafter, in the event it has not been revoked by a survivor, be admitted to probate as- his will: The property disposed of may be joint’or separate, but the declared- intentions of each testator affect only his own property or his share in joint property.”

The contentions of the appellants are that by this will Sam'and Jane Hill meant to treat’the property of each as the ■ common or community property of both; that on the death of one the survivor was to take a life interest in the property, or until he or she married, and at the survivor’s death all the property was. to be divided among the children born of this marriage; that the words “and at our death, if neither should marry again, our property and effects of every discription to be divided between onr ares,” can only mean tbe children born of this marriage; that it wonld be unreasonable to believe that Sam Hill intended to leave any of his property to the children of Jane Hill by her first husband.

It is the duty of the court to ascertain and enforce the actual intent of the testatrix, and this intent is* to be gathered from a consideration of the will as a whole, giving effect, if possible, to each and every word used therein. A mere glance at the will shows that neither Sam nor Jane were versed in the law nor in the correct use of the English language. The phraseology and spelling in the will conclusively show this. It is also a reasonable inference that the will was not drafted by one learned in the law. It is to be noted that the will makes exclusive use of the plural pronoun. The possessive pronoun “our” appears in this will several times: The first time, “make this our last will and testament,” meaning the will of each. Then “give and bequeath our property,” meaning the separate property of each. “At our death,” necessarily meaning the separate death of each, because the next provision in the will is for a life estate in' the survivor, provided he or she does not marry. This survivor in that clause is also referred to by the plural pronoun “they.” If this survivor marries, “then the property to be divided equal between all our ares.” This is immediately followed by “and at our death,” thereby meaning the death of the survivor. Then follows the last phrase in the will, about which this controversy has arisen, namely, “our property and effect^ of every discription to be divided between our ares.”

It .was clearly the intention of both Sam and Jane Hill to provide a lift estate for the survivor, provided this survivor did not marry. The clause, however, referring to this life estate, negatives the idea that these two people meant to consider tlieir property as the common property of both, for the reason that in case of the marriage of the survivor the property of one dying first necessarily under the will was immediately to go to those' designated in the last clause as “our ares.” Neither Sam nor Jane meant by this will to divest themselves of their separate estates, so that, in cáse 'the survivor married again, then he or she would not only lose the estate of the one dying first, but would also lose the property to which originally he or she had title. While, as argued by counsel for appellants, it would seem unreasonable for Sam Hill to allow Jane’s children by her former husband to share equally with his children in his estate, we do not think the will admits of any such unreasonable' construction. It would, however, be unreasonable and contrary to parental instinct and love for a testator or testatrix, without giving any reason therefor, to cut off from his bounty some of his children. In other words, in the absence of an intention expressed or to be clearly inferred from the terms of a will, it is to be presumed that the testatrix meant for all of her children to share equally in her bounty.

We think the intention of Jane Hill, as shown by an examination of the entire will, was to give her husband a life estate in her property provided he should not marry again, and at his death for this property to be divided equally among her heirs, which here meant her children and their descendants by both husbands. Sanq Hill’s intention was for his wife, Jane, to take his property in the same manner, and at her death, for his property to be divided equally among his heirs, consisting of his children by Jane.

Considering this as the separate will of Jane Hill, and using the singular pronoun wherever the plural pronoun appears in the will, the words “our ares”would then read “my ares.”

Affirmed and remanded.