220 Miss. 755 | Miss. | 1954
C. H. Gaines died on January 5,1953. His last will and testament, dated October 29, 1952, was duly admitted to probate by a decree of the Chancery Court of Coahoma County on January 8, 1953, and Charles Louis Gaines and Boy Chapman thereupon qualified as executors of the will.
In his will the testator devised and bequeathed his property as follows:
“Know All Men By These Presents, That I, C. H. Gaines, of Coahoma County, Mississippi, being of sound and disposing mind and memory and over and above the age of twenty-one years do hereby make, publish and
“Item I: It is my desire that all my just debts be paid as soon after my death as possible.
“Item II: I hereby name and appoint Roy Chapman of Rena Lara, Mississippi, and Charles Louis Gaines of Newton, Mississippi, as joint executors of this my last will and testament and request that they not be required to give any bond as such nor make any accounting to any court.
“Item III: With the exception of my brother G. E. Gaines, I hereby will, devise and bequeath all the property of every kind, character and description, both real and personal, of which I may die seized and possessed to my heirs at law according to the laws of descent and distribution of the State of Mississippi. I have specifically excluded my brother G. E. Gaines from this devise and bequeath because he has been well provided for and not because of any disfavor or ill will.
“In Testimony Whereoe, I have signed, sealed, published and declared this as my last will and testament in the presence of Jay Gore, Jr. and E. Cage Brewer, Jr. whom I have requested to become attesting witnesses hereto, on this the 29 day of October, 1952.
/s/ C. H. Gaines
C. H. Gaines
Witness:
/s/ Jay Gore, Jr.
/s/ E. Cage Brewer, Jr.”
C. H. Gaines was never married. Neither his father nor his mother was living at the time of his death. He left surviving him one half brother, G. E. Gaines, and one half sister, Mrs. Emma G. Slaughter, the appellant herein; also one full brother, Walter J. Gaines, and one full sister, Mrs. Lillie G. Pierce, and one full brother,
On February 5, 1953, the executors filed a petition in the chancery court asking that the court construe the will of C. H. Gaines, deceased, and determine who were the heirs-at-law of the testator entitled to share in the distribution of the estate under the terms of the will. All of the above named kindred were made parties defendant to the petition.
The petition was heard before the chancellor in vacation on February 21, 1953. The only witness who testified during the hearing was the attorney who had prepared the will for the testator and who had attested the same as one of the subscribing witnesses. The witness testified that during the conference he had with the testator before the will was prepared the testator mentioned each of his brothers and sisters by name; that he mentioned G. E. Gaines as his brother; and that he mentioned Mrs. Slaughter as his sister; that he never referred to either of them as his half brother or half sister. He stated that the testator instructed him to exclude G. E. Gaines specifically. “And he gave as a reason for it that he wanted his other brothers and sisters to share, and that he thought that G. E. Gaines was well enough fixed to take care of himself.”
In answer to a question propounded to him by the court, the witness stated that he knew nothing about the testator having a half sister and a half brother — “he never mentioned that to me.”
The chancellor held that under the terms of the will and the statutes of descent and distribution only the brothers and sister of the whole blood and the children
From that decree Mrs. Emma G. Slaughter has prosecuted this appeal.
The only question presented for our decision is whether or not Mrs. Emma G. Slaughter, the half sister of the testator, was entitled to share in the estate under the terms of the will.
The appellant does not contend that she would have been entitled to inherit as an heir-at-law of C. H. Gaines, deceased, if O. H. Gaines had died intestate. The appellant does not contend that she would have been entitled to share in the estate under the terms of the will if no mention had been made of G. E. Gaines, who was referred to in the will as the testator’s brother. The appellant’s claim to a share in the estate under the terms of the will is based upon the language used by the testator, in Item III of the will, wherein he devised and bequeathed his property of every kind to his heirs-at-law, with the exception of his brother G. E. Gaines, who was already well provided for. The appellant’s claim rests entirely upon the doctrine of gift by implication.
“If a testator, in describing a group or class whom he wishes to remember in his will, expressly excludes from membership therein a designated person who, as a matter of fact, would not come within the meaning of the words used to denominate the class, the question arises whether an intention is shown that the class should be considered as embracing other persons who come within the actual status or position of the person excluded. The authorities appear to support the conclusion that the fact that a testator has made such an exception, while some indication of a supposition that other persons of a description similar to the one expressly excluded should be included in the class, is not necessarily conclusive.”
The doctrine of gift by implication was fully considered bv this Court in the case of Ball v. Phelan, et al., 94 Miss. 293, 49 So. 956, 23 L. R. A. (N. S.), 895. In that case the Court quoted with approval a statement of Vice Chancellor Van Vleet in Bishop v. McClelland’s Ex’rs, 44 N. J. Eq. 450, 16 A. 2, 3, 1 L. R. A. 551, as follows:
“A bequest may undoubtedly arise from implication, but, to warrant the court in so declaring, there must be something more than conjecture to support its declaration. The implication must be a necessary one. The probability of an intention to make the gift implied must appear to be so strong that an intention contrary to that which is imputed to the testator cannot be supposed to have existed in his mind. A construction in favor of a gift by implication should never be adopted, except in cases where, after a careful and full consideration of the whole will, the mind of the judge is convinced that the testator intended to make the gift.”
The general rule relating to bequests or devises by implication is stated in 57 Am. Jur., p. 782, Wills, par. 1192, as follows:
In the case of Bell, et al. v. Dukes, 158 Miss. 563, 130 So. 734, the Court said that in order for a devise to arise by implication, the probability of an intention to make the devise must appear to be so strong that an intention contrary to that which is imputed to the testator cannot be supposed to have existed in his mind. The implication must be a necessary one. A construction in favor of the devise by implication should never be adopted except in cases where, after a careful and full consideration of the whole will, the mind of the judge is convinced that the testator intended to make the devise.
But having in mind these rules of caution, the Court must not lose sight of the fact that the fundamental rule governing the construction of all wills is to ascertain what the intent of the testator was. Ball v. Phelan, et al., supra; Cross v. O’Cavanagh, 198 Miss. 137, 21 So. 2d 473; Yeates v. Box, et al., 198 Miss. 602, 22 So. 2d 411; Brumfield v. Englesing, 202 Miss. 62, 30 So. 2d 514. And, as stated by the Court in its opinion in Ball v. Phelan, et al., supra, “This intent must be gathered * * * from the language used in the will, and by this is meant that such intention shall be gathered from the four corners of the instrument; that is to say, from the whole will — the whole frame of the will; the whole scheme of the testator manifested by the will, taking into consider
it is also well settled that a will should be construed in the light of the circumstances surrounding the testator at the time the will is executed. Schlottman v. Hoffman, 73 Miss. 188, 18 So. 893, 55 Am. St. Rep. 527; Countiss v. King, 149 Miss. 70, 115 So. 109; Strickland v. Delta Inv. Co., 163 Miss. 772, 137 So. 734.
After a careful examination of the will that we now have before us, it seems clear to us from the language used in Item III of the will that the testator intended to include the appellant in the group or class described as “my heirs at law according to the laws of descent and distribution of the State of Mississippi.” The conclusion that we have arrived at does not rest upon conjecture, but is founded on expressions in the will. The testator had never been married. His father and mother were dead. It is clear from the will itself that he intended that his property should go to his brothers and sisters and the children of his deceased brother. It appears from the language used that the testator was not aware of the fact that the statutes of descent and distribution made a distinction between the kindred of the whole blood and the kindred of the half blood. None of the kindred whom the testator had in mind at the time the will was executed is mentioned by name in the will, except G. E. Gaines, who is referred to not only once, but twice, as “my brother G. E. Gaines.” G. E. Gaines, being a half brother, was not an heir-at-law of the testator. But it is clear that the testator thought that G. E. Gaines was one of his heirs-at-law, and that if G. E. Gaines was to be excluded from sharing in the estate under the will, he must be expressly excepted from the group described
As stated by tMs Court in Ball v. Phelan, et al., supra, the intent of the testator must be gathered from the whole will, “taking into consideration and giving due weight to every word in the will.” And in seeking to ascertain the intent of the testator in this case, we cannot brush aside that portion of the language used by the testator which indicates an intention on his part to include as members of the group whom he describes as “my heirs at law” the brother and sister of the half blood.
Even though the testator may have described the group whom he wished to remember in the will as “my heirs at law,” if in doing so he has added other words which indicate that he meant to include in that group whom he has described as “my heirs at law” his brother and sister of the half blood, the term should be construed so as to carry out what the testator appears on the whole to have really meant. The testator had the right to designate the group who should share in the distribution of his property, and to add to or take from that group as he saw fit; and even though he may have used the technical words “my heirs at law,” which taken by themselves would not include his half sister, if by adding other words he made it clear that his half sister was to be included in the group who were to share in the estate under the will, it is the duty of the court to give effect to that intention. See Cromer v. Pinckney, 3 Barb. Ch. (N. Y.) 466; Pemberton v. Parke, 5 Binney (Pa.) 601, 6 Am. Dec. 432; Lusby, et al. v. Cobb, et al., 80 Miss. 715, 32 So. 6.
Ordinarily, the terms “heirs,” “heirs-at-law,” “lawful heirs” and “right heirs,” are to be understood according to their legal acceptation. But where other ■words or phrases are added, indicating a different mean
In the case of In Re: Estate of William Henry Austin, 236 Iowa 945, 20 N. W. 2d 445, 162 A. L. R. 709, the Court said: “Under varying circumstances, courts frequently do not apply the technical meaning of the word ‘heirs.’ It is a flexible term and the meaning to be given it is the question of the testator’s intent.”
In the case of Lusby, et al. v. Cobb, et al., 80 Miss. 715, 32 So. 6, the Court held that the word “kin,” standing alone in a will, means such kin as take under the statutes of descent; but where there are other words in the will disclosing with reasonable certainty, that particular persons were meant to be designated, courts will give the word the meaning the testator attached to it. And, in lhat case the Court held that where a testator devised his estate to ‘ ‘ all my blood kind in Louisiana and Texas, ’ ’ and at the time the will was made and at his death he had two half brothers and one nephew of the whole blood residing in Louisiana and nephews and nieces and grandnephews and grandnieces of the whole blood residing in Texas, the word “kind” should be construed as “kin,” and the half brothers were entitled to a per capita share of the estate.
If the testator in this case had said that the property should go to his heirs-at-law according to the laws of descent and distribution of the State of Mississippi, and had said no more, the brother and sister of the half blood would have been excluded, and the appellant’s claim
We have reached this conclusion from an examination and study of the will itself. It has not been necessary for us to rest our decision on the testimony of the attorney who prepared the will and attested the same as one of the subscribing witnesses, and who testified on the hearing before the chancellor. It is doubtful whether the testimony of the attorney was competent to show that the testator intended to include the appellant in the group referred to as his heirs-at-law, even though that testimony was admitted without objection. The attorney expressed no direct opinion concerning the testator’s intention. But the testimony as a whole confirms the correctness of the conclusion that we have reached from our examination of the will itself. The decree of the chancellor is therefore reversed, and a decree will be entered
Reversed and remanded.