Wallace v. Wallace

75 So. 449 | Miss. | 1917

Holden, J.,

delivered the opinion of the court.

This suit was begum in the chancery court of Tate county, where the appellants sought by bill to restrain the commission of waste upon certain lands and to have construed the will of J. M. Wallace, deceased; and from a decree in favor of appellee, this appeal comes here.

It appears that J. M. Wallace died testate, owning considerable property. Under the terms of his will, item 2, he left to the appellee, John P. Wallace, “and to the heirs of his body” certain lands therein described. At the time of the death of J. M. Wallace, the appellee J. P. Wallace had three living children who are the appellants herein. The appellants filed this bill, alleging that they “had a remainder” in said estate, and seeking a construction of the will of J. M. Wallace, and asking that appellee J. P. Wallace be restrained from disposing of any of the lands or timbers thereon which had been devised under .the will of J. M. Wallace. The appellee J. P. Wallace demurred to the bill, which demurrer -was sustained by the chancellor. The only question in this case is whether the words, “and to the heirs of his body” in the will of J. M. Wallace, deceased, created an “estate tail” with a life estate in J. P. Wallace, with remainder over to his children, appellants herein, or whether the devisee, appellee J. P. Wallace, obtained a fee-simple title to the property, under the provision of the will in question.

The appellants contend that it was the intention of the testator, fro.m the reading of the will, that the appellee J. P. Wallace should take only a life estate in the property, and that the remainder goes to the appellants, the children of appellee, who were living at the time the will was executed. The appellants also urge that the chancellor erred in refusing to consider the oral testimony offered by the appellants, showing that the testator intended that the appellee J. P. Wallace was to receive only a life estate and the remainder over was to go to the heirs of his body, who were the appellants. The plain and unambiguous provision in question in the will devised the appellee J. P. Wallace an estate in fee tail. Under section 2765, Code of 1906, estates in fee tail are prohibited, and, when created, become estate in fee simple, under the statute. Section 2776 provides that a devise of property to any person for life, with remainder to the heirs of his body, shall create an estate for life in such person, with remainder over to the heirs of his body, who shall take as purchasers.

It clearly appears to us that the testator here did not intend to devise a life estate to the appellee J. P. Wallace, as the will fails to do so, but it expressly and plainly devises an estate in tail to the appellee, which, of course, under the statute is void, and vests in appellee a fee-simple title to the property involved.

The chancellor was correct in holding that the oral testimony, showing the intent of the testator, was incompetent to vary the express provision of the will, because there was no ambiguity nor reasonable doubt as to the intent of the testator as plainly expressed by the fixed and technical meaning of the language of the will. The value and strength of unambiguous written wills would be seriously imparied were it permissible to vary by oral testimony the plain and clear intention of the testator as expressed by his written testament. There can be no doubt or misunderstanding as to what the testator intendend by the language used in the provision of his will here in question. Oral testimony to vary the plain and obvious meaning and intent of the language used is not admissible in construing the instrument. Succession of Quinlan, 118 La. 602, 43 So. 249; Ball v. Phelan, 94 Miss. 293, 49 So. 957, 23 L. R. A. (N. S.) 895; Floyd v. Smith, 59 Fla. 485, 51 So. 537, 37 L. R. A. (N. S.) 651, 138 Am. St. Rep. 133, 21 Ann. Cas. 318; McKenzie v. Jones, 39 Miss. 230; Dibbrell v Carlisle, 48 Miss. 691; Sudduth v. Sudduth, 60 Miss. 366; Haring v. Flowers, 91 Miss. 242, 45 So. 571; Pressgrove v. Comfort, 58 Miss. 644.

The decree of the lower court is affirmed.

Affirmed.