86 Miss. 4 | Miss. | 1905
delivered the opinion of the court.
The following is a precise reproduction of the will of S. S. Reeves, deceased. The original in the record appears precisely as this does, including the punctuation, with the pertinent parts italicized:
“Last Will and Testament of S. S. Reeves, Deceased.
“State of Mississippi
“Adams Gounty June
“The 2nd. 1899.
“I Stephen Stapleton Reeves, being in good health and sound mind do make my last will and testament I will desire that all of my just debts be paid. I will and bequeath to my wife Lelia A. Reeves all of my Wm. Holmes place, South and West of the public road leading from Thomas T. Rollins to Sandy Greek containing about fifteen hundred acres also all of my stoclc that I may have at my demise after her demise to go to Sallie H. Montgomery and her bodily heirs I also give and bequeath to Sallie E. Montgomery my Apple Grove plantation known as the Garter place containing four hundred and eighty Acres to have during her natural life then to be divided equally among her children. I will and bequeath to my grandson Hansford Montgomery and Albert Reeves my Bio comb place in Eranklin county containing Six hundred and six acres this includes the Delton Poster place &c to have and to hold during their natural life and then to be equally divided between Hansford Children if any if not to go to Sallie E. Montgomerys Children I also-desire that all of my lands be sold and the proceeds equally divided between my wife Lelia A. Reeves and Sallie E. Montgomery and her children to be sold as they think best I appoint*9 my daughter Sallie E. Montgomery and my wife Lelia A. Reeyes Executors of my will without bond.”
After Reeves died, his wife, one of the donees of his will, married one Havard, and these two conveyed, for value, to ap-pellee, certain white oak timber on the Wm. Holmes place. Subsequently these two, joined by Mrs. Sallie E. Montgomery (nee Reeves) and her husband, conveyed this timber to appellant Spraggins, who conveyed it to appellant Tigrett. Appellee, McPherson, filed his bill' against Sallie E. Montgomery, her husband and her children, Mrs. Havard and her husband, Sprag-gins and Tigrett, setting up these facts, to remove this cloud from his title, and for injunction to restrain the cutting of the white oak timber. Appellants demurred on the ground that the will gave the widow a life estate only, with remainder to the daughter, Sallie E. Montgomery, and her bodily heirs. This demurrer was overruled, and appellants, declining to plead fur-thei’, appeal to this court. So the whole and sole question is whether the widow took the Holmes place in fee simple or only for her life, under the will, and this depends on the meaning of the word “also” in the- second clause.
The decree below was, no doubt, based on Sherman v. Wooster, 26 Ia., 272. We cannot subscribe to the conclusion reached in that case, in which Dillon, C. J., dissented. After examining 2 Am. & Eng. Ency. Law, 177, and notes; 2 Cyc., 136, and notes; Evans v. Knorr, 4 Rawle (Pa.), 66-69; Noble v. Ayers, 61 Ohio St., 491 (56 N. E., 199); Hyman v. Williams, 34 N. C., 92; Morrison v. Schorr, 197 Ill., 554, 565 (64 N. E., 545); Morgan v. Morgan, 41 N. J. Eq., 235—237 (3 Atl., 63)—which last case condemns the conclusion of the majority in Sherman v. Wooster, supra, in express terms—we conclude that the will in the record before us, by its second clause, gave the widow á life estate only in both the Holmes place and the stock.
Reversed, and decree here sustaining the demurrer and dismissing the bill.
