82 So. 149 | Miss. | 1919
delivered the opinion of the court.
■ Newton H. Dunlap, a widower, lived and died in Hardeman county, Tenn., and’ at the time of his death owned among other lands that here in controversy, which- is situated in Tunica county, Miss. He left several children surviving him, to whom by his last will and testament he devised his land, that here in question being devised to his daughter, Mrs. Lillie M. Rambo, whose husband then was and still is living. Item 10 of his will is as follows:
*323 “It is further my will and desire that the portions of land-above and hereafter bequeathed to my daughters, Anna E. Bose, Minnie M. Dunlap, Adeline Dunlap and Lilly M. Bambo, respectively, shall be held and owned by each for their sole and separate use for and during the term of their natural life and at their death it shall descend to and vest in the issue of their bodies respectively, and if they or either of them have no issue, then to their heirs forever.”
The devisees under this will entered into the possession of the property devised to them therein. Mrs. Bambo, who lived in Tennessee, died without issue, leaving a will by which she devised all except a small portion of her property to her husband, T. D. Bambo, the appellee herein, who thereupon entered into the possession of and now claims to own the land here in controversy. The appellants, who are the sisters and brother of Mrs. Bambo and the surviving children of Newton H. Dunlap, exhibited their bill in the court below against the appellee, T. D. Bambo, praying that his claim to the land be canceled, and he be made to account to- them for the rents and profits thereof. On final hearing the bill was dismissed.
No interest in the land passed to the appellee under the will of Mrs. Bambo, for the reason that- under her father’s will she had only a life estate therein.
So that the real question presented to us for consideration is whether or not the appellee is an heir of his wife within the meaning of that clause of Dunlap’s will by which he devised the land to Mrs. Bambo’s heirs in- event she should die without issue. This devise is to a class, the members of which must be determined according to the law of Tennessee, the domicile of the testator, and not by law of Mississippi, although the land devised is situated therein, for the rule is that where the laws of different jurisdictions are involved in the interpretation of a will for the purpose of ascor-
That the devise is not to the heirs of the testator, but to the heirs of a person domiciled in a' state other than that in which the testator lived has been held not to indicate that the testator had in mind the law of such person’s domicile (Proctor v. Clark, 154 Mass. 45, 27 N. E. 673, 12 L. R. A. 721), hut if the contrary should he the true rule, as to which we are,not now called oh to 'express an opinion, the result would he the same here, for Mrs. Rambo, to whose heirs the land' 'was devised, also lived and died in Tennessee.
The devise to the heirs of Mrs. Ramho therefore is to the person or persons appointed by the law'of Tennessee to succeed to her real property in event she should die intestate, and those persons are the appellants, her sisters and hrpther. 4 Ann. Code of Tennessee,- section 4163 et seq.
Reversed and remanded.