53 Miss. 513 | Miss. | 1876
delivered the opinion of the court.
The decision of this case involves an interpretation of the will of Henry Vaughan, deceased, to ascertain whether Francis Vaughan took a fee-simple or merely a life estate under the will of said decedent. By the sixth clause of the will, certain land, being part of the testator’s “ Madely” plantation, and the rents due or to become due at the testator’s death, were given to Charlie M. Vaughan, granddaughter of the testator; the land to be held by her to her sole and separate use “ for and
In this connection it is urged that the will shows that it was drawn with skill and deliberation, and that the testator knew exactly what he wanted to do, and used precise language to express his will; and it is claimed that it must be assumed that the expression in the codicil of the purpose of the testator that Charlie M. Vaughan should hold her substituted devise “ on the same conditions as the land heretofore given her by article sixth; ” and that the omission of such expression as to the devise to Francis was intentional, and designed to give Francis an interest in Madely freed from all conditions and restrictions.
The claim of skill, deliberation and precision for the writer of the will, as manifested by it, is just. But it may appropriately be asked, if the testator had in mind the particular thought of subjecting the devise to Charlie M. Vaughan, by the codicil to the conditions contained in the sixth article, and of freeing the devise by the codicil to Francis from the conditions and limitations contained in the tenth article, which devised to him the interest in the Exum plantation, why did he not expressly declare that Francis should take Madely absolutely and unqualifiedly ? If in making the codicil the intent was to enlarge the estate of Francis to a fee-simple, why not say so, and avoid all room for doubt ?
The question is as to the intention of the testator, as deduced from the whole will and codicils, and it is clear that he meant to alter the tenth article only so far as to give Francis the Madely place instead of the Exum place, except his interest in the three-eighths excepted from the Exum plantation. He said, “ I also revoke that part of article tenth of my will giving to my son Francis Vaughan half of my Exum plantation,” &c. He revoked that part. He did not revoke any other part of article tenth. It remained, except as to its devise of the half of the Exum plantation; and the codicil substitutes the Madely place for the Exum, and the tenth article is to be read as if the testator had erased the Exum and inserted the Madely plantation in it.
The revocation by the codicil of article tenth was not as to the object of the testator’s bounty, or the terms on which it should be held, but only as to its subject-matter. The body of the will fixes the -person and the terms of holding. The codicil substitutes a different thing to be thus taken and held. Otherwise, it would result that Francis held the half interest in the three-eighths excepted from the Exum plantation on terms different from those on which he held the Madely place; and the manifest purpose of the testator, pervading his will, will have been thwarted, and he who evinced intelligence, deliberation and care in the construction of his will must be
The decree is not in accordance with this view, and it is reversed, and demurrer to bill sustained and bill dismissed.