Tucker v. Stites

39 Miss. 196 | Miss. | 1860

Handy, J.,

delivered the opinion of the court:

The bill in this case shows that Elias L. Payne, by his will, bequeathed to Mrs. Susan Hodge a sum of money' sufficient to purchase a female slave, which slave when purchased was to be held by John Hodge and said Susan, during the lifetime of the said Susan, “ and after her death the said slave and her increase, if any, to descend to Mary L. Hodge and Elizabeth M. Hodge, then infant daughters of the said Susan; or if either of the said Infant daughters should then be dead then the said slave as above to descend to the living one, or if both should then be dead the said slave as above to descend to the surviving children of the said Susan Hodge equally.” The slave was purchased according to the will, and held by Susan Hodge until her death in the year 1858. Mary L. and Elizabeth M. Hodge both died in the lifetime of Susan, leaving the complainants, their children, who claim the slave and her increase in right of their mothers, under the bequest to them above stated, against the defendants, who were the surviving children of Susan Hodge at the time of her death. And the question presented for our determination is, whether, under this clause of the will, the slaves went to the issue of Mary and Elizabeth on the death of Susan, or to 'the surviving children of Susan.

There is no clause or disposition in the other parts of the will tending to show what was the intention of the testator in this clause, or that he had any particular object in view except that which the words employed indicate. We are, therefore, in interpreting the clause, left to the legal force of the language used, unaided by circumstances shown, calculated to explain or control them; for the general rule undoubtedly is, that words of disposition in a will must be construed according to their plain, natural sense, presuming that the. intention of the testator is thereby fully expressed, unless an intention different from that imported by the words be manifested by the context.

■ Applying these principles to the clause in question, it is very clear that the slaves, upon the death of Susan Hodge, went to her surviving children, and not to the issue of her children who died in her lifetime. The words are plain and explicit: to Susan Hodge until her death;' then to her daughters Mary and Elizabeth, or, if either of them should then be dead, to the survivor; if both should then be dead, to the other surviving children of Susan Hodge equally. There is no ambiguity in the language; and the disposition made by it is sensible and natural, according to the import of the words, and such as the testator might reasonably make. It would seem that the children of Susan Hodge were the especial objects of his consideration; that he intended to bestow a personal benefit upon the two named if they lived to enjoy it, but if they did not, then he bestowed it upon other children of Susan Hodge who might be living at the time of her death. It does not appear that he contemplated that the children named might die before the slaves vested in them, leaving issue; and there is nothing to warrant the construction that he intended the limitation over to the surviving children of Susan Hodge to take effect only upon Mary and Elizabeth dying without issue. On the contrary, the language is plain that it was to take effect upon their dying before Susan Hodge. The several dispositions are alternative, and must take effect according to the terms plainly expressed.

The authority mainly relied on, in support of the contrary construction, is the case of Phipps v. Akers, 4 Mann. & Grang. 1106, (43 Eng. C. L. R. 569.) But that case appears to have no application to the question presented, here. It was a devise of lands tó A in fee simple, “ when and so soon as he should attain his age of twenty-one years; but, in case he should die under that age,” then to go into the residuum of his estate, which was left to C. The testator died seized in fee of the lands, and leaving A under twenty-one years of age; and the question was, what estate A took. That question turned upon the point whether the estate devised to A was not upon the condition precedent of his arriving at twenty-one years of age; and it was held, under the peculiar phraseology of the will, that A took an immediate estate, subject to be divested in the event of his dying under twenty-one, and without issue. The consideration whether he died with or without issue did not arise in the case, and had no effect upon the point presented for decision, which was simply whether A took any estate before attaining majority. This being the point of controversy, the report of the case in the book above cited, in stating the language of the will, omits to state that the limitation in the will was, in case A should die before twenty-one “without leaving issue of his body f because these last words were immaterial to the question in controversy. But these words are found in the will as it is stated in the same case, while it was in the Court of Chancery, and as it is reported in 5 Simons, 44, Phipps v. Williams, 6 Eng. Ch. R. 311.

We are of opinion that the demurrer should have been sustained ; and accordingly the decree is reversed, and the bill dismissed.