Henry v. Henderson

60 So. 33, 103 Miss. 48

• Court: Mississippi Supreme Court
• Decided: October 15, 1912
• Status: Published

Opinions

Smith, C. J.,

delivered the opinion of'the court.

On the 1st day of July, 1897, Mrs. L. H. Henry executed a will, and afterwards added two codicils, the first dated the 4th and the second the 20th day of January, 1898, which will and codicils the' reporter is directed to-set out in full.

Mrs. Henry died in January, 1898, some time after the 20th and before the 29th day thereof. Her husband, survived her about three months, dying on the 11th day of May, 1898. Mrs. Chappie C. Craig, a niece of her husband’s, had at the death of Mrs. Henderson two-children, Joseph Ditto Craig and Loraine Craig, aged twelve and nine, respectively. Joseph Ditto Craig died in January, 1901, unmarried and without issue, leaving as his heirs at law Ms brothers Loraine and Raymond Craig, the last-named having been born after the death of Mrs. Henderson. The petition filed in the court below by the executor of this will alleged that Loraine Craig would become of age on the 26th day of November, 1909, and that he would then be called upon to settle with Mm under the terms of the will; that he had been advised that the nieces and nephews of Dr. J. P. Henry claimed that portion of the estate of Mrs. L. H. Henry which under the will had been devised to Joseph Ditto Craig, and praying that he might be advised as to what his duties were in the premises. All proper and necessary parties were duly served with process, and are now before the court. The decree of the court below, in effect, adjudged that the meces and nephews of Dr. Henry could not take under the will until after the death of both Joseph and Loraine Craig without issue, and that Loraine succeeded to all of Ditto’s rights in the property by virtue of an implied cross-remainder. From this decree the Meces and nephews of Dr. Henry have appealed to this court, and are the only ones who have here assigned error. At a former day of this court judgment was rendered reversing the decree of the court below, and appellees have now suggested error therein.

The first question, among many presented to us by the briefs of counsel, to which we shall address our attention, is this: Did the devise over to the nephews and nieces of Dr. Henry take effect as to the moiety devised to Ditto immediately upon his death, or was it the intention of the testatrix that the property should go over as a whole upon, and not until, the death of both Ditto and Loraine without issue? After disposing of a portion of her real estate, the testatrix disposed of the remainder thereof in the following language: ‘ ‘ The remainder of all of my real estate I give and bequeath to Joseph Ditto Craig and his brother Loraine Craig, for and during their natural lives, and at their death to go to the heirs of their bodies.” In the first codicil she provided for the contingency of the death of the two Craigs without issue as follows: “It'is my further will that in the event of a failure of issue by the said Loraine and Ditto Craig, that on their death all property bequeathed to them shall go to the nephews and nieces of my husband, J. P. Henry.”

The sole object of construing a will is to arrive at the intention of the maker; and this intention must be gathered from the whole instrument, construed in the light of .the circumstances surrounding the maker at the time of the execution thereof. While it may be true that “no two wills probably ever were written in precisely the ■same language throughout, and probably no two testators ever did die under precisely the same circumstances in relation to their estate, family, and friends,” so that technical rules of law and adjudicated eases are not of as great assistance in the construction of a will as they are in the construction of some instruments of a different character, still they are not to be disregarded altogether, but should be followed, unless to do so would do violence to the clear intent of the testator.

Before examining the will further in detail, it will not be, therefore, unprofitable for us to ascertain what construction has been put by the courts upon other instruments containing words of this character. It is not necessary for us to wander far afield in this search; for such instruments have several times been under consideration by this court. In Hawkins v. Hawkins, 72 Miss. 749, 18 South. 479, Mr. C. M. Vaiden and his wife, in conveying to their three nieces a certain lot, used the following language: “We give to them, our said nieces, Lizzie v. Hawkins, Alice Y. Herring, and Sallie Cowles Herring, said lot as described, with all appurtenances, emoluments and rents arising from the same during their natural fives, and at their death to the descendants of their bodies in fee, if any they may have, but if they have none to survive them, then, in that event, to the heirs of their brothers and sisters in fee.” The court in construing this deed held that by reason of section 2441 of the Code of 1892, now section 2770 of the Code of 1906, these grantees became tenants in common of the property and not joint tenants, but that the duration of the estate was not cut down by the statute, and that the limitation over after their death did not take effect until the death of all of them.

In Halsey v. Gee, 79 Miss. 193, 30 South. 604, the will of Greenwood Leflore was under consideration, wherein he had devised the land in controversy as follows: “I give and devise to my two grandsons, Greenwood L. Halsey and John B. Halsey, the tract of land known as the ‘Big Sand Place,’ and in the event that either of my said grandsons should die without issue then it is my will, and I hereby direct, that the land herein devised to him shall go to the surviving grandson, and in the event that both of them die without issue surviving, then it is my will that the land herein devised and bequeathed to them, together with all the bequests hereinafter made to them, revert to my son, John, and my daughter Rebecca Harris, equally to be divided between them.” And the court held that the limitation over to John and Rebecca Harris, took effect only on the death of both Greenwood and John Halsey without issue; that the death of either leaving issue destroyed this limitation over. In Banking Co. v. Field, 84 Miss. 646, 37 South. 139, the third clause of the deed there construed provided that: “On the death of said J. Harris Field, all the property herein conveyed shall vest in the said Bate Field, one-half for herself and the other half she shall hold in trust for the said J. Harris Field.' . . . Should the said Bate Field or J. H. Field, Jr., die without issue of the body, the whole property herein conveyed shall vest in the survivor, subject to the rights of the said J. H. Field hereinbefore mentioned, and in case both shall die without issue of their bodies, the whole property shall vest absolutely in the said J. H. Field or his heirs at law, if he be then dead.” While the specific point here under consideration seems not to have been the question then before the court, it said: “We think the scheme of the deed is this: . . . To convey the ultimate fee in the property, if both Bate and Harry should die without issue living at the time of their respective deaths, to J. Harris Field, Sr. Bate and Harry took fees determinable upon the contingency of dying without issue living at his or her death, with a conditional limitation over to J. Harris Field, Sr. . . . The limitation to J. Harris Field, Sr., is a conditional limitation over after the death of Bate and Harry, both leaving no issue at their respective deaths.” It will be noted that in Halsey v. Gee and Banking Co. v. Field the instruments under consideration provided that the limitation over should take effect in event both of the life tenants should die without issue, while in the case at bar the devise and in Hawkins v. Hawkins the grant is to the life tenants during “their” natural lives, and the limitation over takes effect at “their” death, but this difference in the language of the instruments does not destroy the •effect of Halsey v. Gee and Banking Co. v. Field; for, as was said by the court in Baldrick v. White, 2 Bail. (S. C.) 442: “If the property were given to two for life, and at their deaths to their children, if both should die without leaving children, then over, here would be cross-remainders by necessary implication; nothing being given to the remaindermen over until the death of both without children. So it might be if the word ‘both’ were omitted on the apparent intention to give over the whole property together as one estate, which could not be effected until both were dead without children, and not to limit over the respective shares.” These cases should be decisive of this controversy, and ordinarily we would follow them without further citation of authority, but for the fact that they were necessarily overruled by the former opinion rendered herein.

In Jones v Cable, 114 Pa. 586, 7 Atl. 791, the testator had devised his farm to his two sons in the following words: “I give and bequeath unto my two sons John and Edward Cable, all of my farm after my death to them as long as they do live, and after their death to their children,” etc. In construing this will the court used this language: “Our construction of this will is that John and Edward take a life estate, with remainder to their children as purchasers, upon the death of the survivor. It is plain that this was the intention of the testator, for the devise •over to the children does not take effect until after ‘ their ’ death, which evidently means the death of the survivor. A testatrix in her will gave the improvement of my property in trust to ’ a trustee named, ‘ the income to be paid equally to my brother and my sister during their natural lives, and at their death the principal I give to my nephews and nieces then surviving.’ The brother died after the death of the testatrix, and left the sister surviving. Held, that the whole income of the property was payable thereafter to the sister until her death, until, which time the gift over in remainder to the nephews and nieces was not to take effect.” Loring v. Coolidge et al., 99 Mass. 191. Among other things, the court said in this case that “ ‘ their death ’ as a point of time is the date when both shall have deceased.”

In Earle v. Fiske, 103 Mass. 489, the court held that a clause in a will directing the executors to procure a suitable residence for his daughter, Julia, at an expense not exceeding six thousand dollars, and to hold the same in trust for her and her son William “during their natural lives” and “upon the decease of both” devising the property over, clearly gave the daughter and her son an interest during their joint lives and the life of the survivor. In Douglas v. Parsons, 22 Ohio St. 526, it was held that “an agreement to pay an annuity to a husband and wife 'during their natural lives’ binds the party to pay the .annuity during the joint lives of the husband and wife, and during the life of the survivor.”

In Smith v. Usher, 108 Ga. 231, 33 S. E. 876, the testator had devised his land as follows: “I give and devise my Mixon .place ... to my two daughters Savannah .and Amelia, to be used and enjoyed by them during their natural lives, subject to their own control and to be managed by them as femme soles, and should my said daughters Savannah and Amelia have lawful children, then at their decease, I give and devise said plantation to said heirs forever. But should both of said daughters die childless, I give and devise said Mixon place to my grandson Michael Smith, to his heirs and assigns forever.” And the court held that the grandson took no interest in the land until the death of both of the daughters without issue. In Lillibridge v. Adie, 1 Mason, 234, Fed. Cas. No. 8,350, Judge Story, in delivering the opinion of the court, used the following language: “The devise over is, in case Harriet and Clementina should die without issue, ' then my will is that the same shall go to and vest in their two sisters, Mary and Charlotte.’ It is argued that Harriet and Clementina take as tenants in common, and not as joint tenants, and that the devise over ought to be construed to take effect upon the death of either of them without issues as to the moiety of the party so dying.” And, after holding that Harriet and Clementina took as tenants in common by virtue of the Rhode Island statute, he proceeded: “It does not, however, follow that the devise over is to take effect upon the death of either of the devisees without issue as to her moiety, for the language of the testator is ‘if they shall die,’ not if either of them' shall die, ‘then over to Mary and Charlotte.’ ” The court reached a similar conclusion in construing similar language in Richardson v. Manning, 12 Rich. Eq. (S. C.) 454, and Cheney v. Teese, 108 Ill. 473. In Holmes v. Maynel, 25 Eng. Ruling Cases, 697, the language was: “I give and devise all my lands in Meynel and Kirk Langley in the county of Derby unto my two daughters Elizabeth and'Anne Meynel, and their heirs, equally to be divided betwixt them; and in case they happen to die without issue, then I give and devise all the said lands to my nephew Francis Meynel, eldest son of my brother William Meynel, deceased, and to the heirs male of his body. . . .” Anne died without issue, and Francis thereupon claimed a’moiety of the remainder. The two points presented to the court for decision were: First. “What estate Elizabeth and Anne have by this will.” Second. Whether upon the death of Anne without issue Francis in remainder takes anything. As to the second proposition, the chief justice in rendering judgment said: “I conceive Francis takes nothing upon the death of Anne, but that her part remains to her sister by way of a cross-remainder. (1) I take notice that the main design and intent of the testator was that, in the first place, he ■would take care of his own children, and then look after the continuation of his own name and family; for first he gives to his daughters, and afterwards the remainders to Ms nephews, then to the next heir male of the name and family of the Meynels, following herein the law of nature, and the ordinary course of the world. That this was the intent appears by the words of the will: (1) In case (they) die without issue — i. e., both of them — it is not they or either of them. (2) All the said lands, which intends both parts, and not a moiety; and all cannot pass till both are dead without issue. And, if the testator had been asked what he meant by the lands going to his nephew after the death of Ms daughters without issue, he would have answered that he should have the lands-when both- of Ms daughters should be dead without issue, and not before.”

In Doe v. Webb, 25 Eng. Ruling Cases, 702, the will was couched in similar language to that of the will construed in Holmes v Meynel, and the same conclusion was reached by the court. In 2 Blaekstone, Comm, p. 381,-it is stated that: “A devise of black acre to A. and white acre to B. in tail, and, if they both die without issue, then to C. in fee; here A. and B. have cross-remainders by implication, and, on the failure of either’s issue, the other or Ms issue shall take the latter, and C.’s remainder over shall be postponed until the issue of both shall fail.” And in Theobald on Wills (7 Ed.), 738: “If there is a devise of lands to two or more as tenants in common and the heirs of their bodies respectively, followed by a gift over in default of such issue, the gift over takes effect oMy in default of all of such issue as would take under the antecedent limitations, and therefore cross-remainders are implied between the tenants in tail.”

A great many decisions are cited in the various briefs of counsel for appellant, but the cases upon which they seem most strongly to rely in tMs connection are Nichols v. Denny, 37 Miss. 59, Hubbard v. Selser, 44 Miss. 705, and Davenport v. Collins, 95 Miss. 358, 48 South. 733, and 96 Miss. 716, 51 South. 449. Neither Nichols v. Denny nor Davenport v. Collins are in point. In the first-named the will under consideration simply bequeathed certain personal property to joint lagetees; so that no question as to the effect of a bequest over on their death was before the court, and none such was adverted to in its opinion. In the second the question before the court was not when a devise over upon the death of the first takers without issue takes effect, but, as stated by the judge rendering the first opinion, was whether certain parties “under the will take the fee simple title, or whether they take as life tenants, with remainder to their children.”

In Hubbard v. Selser the language of the will was: “I give and' devise to my sons James M. Selser and Eugene A. Selser, and to their lawful children after their deaths, jointly the plantation whereon I am now residing.” It will be observed that in this will two elements contained in the deed in Hawkins v. Hawkins and in the will in the case .at bar are lacking: First, the devise to J. M. and Eugene A. Selser is not expressly for their liv.es; and, second, it contains no devise over on their death without issue. Moreover, the statute there construed did not create a rule of construction as is done by section 2770 of our present Code, which was the one construed in Hawkins v. Hawkins, but simply abolished the right of survivorship in joint estates. This statute, the one construed in Hubbard v. Selser, is as follows: “If partition be not made between joint tenants, the parts of those who die first shall not accrue to the survivor, but shall descend, or pass by devise and shall be subject to debts, charges, courtesy or dower or transmissible to executors or administrators and be considered, to every other intent and purpose in the same manner as if such deceased joint tenants had been tenants in common.”.

These cases are not in conflict, but, even if they were, we would still conceive it to be our duty to follow the Hawkins ease; first, because it is supported by the later cases of Halsey v. Gee and Banking Co. v. Field, and is in line with the current of authority elsewhere; and, second, because since it was decided the statute therein construed had been re-enacted, and “the rule is that where a statute has been construed by the highest court of a state, and afterwards re-enacted in substantially the same terms, the legislature by such re-enactment adopts, along with the statute such construction.” White v. Illinois Cent. R. Co., 97 Miss. 91, 55 South. 593.

It is contended that the court in the Hawkins case would have arrived at a different conclusion had it taken into consideration section 2436 of the Code of 1892, 2765 of our present Code, which contains, among other things, our rule against perpetuities. In this counsel are in error, for as was said in the former opinion herein: “The rule against perpetuities is not a rule of construction, but a peremptory command of law. It is not like a rule of construction, a test, more or less artificial to determine intention. Its object is to defeat intention; therefore, every provision in a will or settlement is to be construed as if the rule did not exist, and then to the provision so construed the rule is to be remorselessly applied.” Gray on the Rule against Perpetuities (2 Ed.), sec. 629. The case of Gindrat v. Western Ry. of Alabama, 96 Ala. 162, 11 South. 372, 19 L. R. A. 839, relied on in the former opinion, is in conflict with the current of authority and with our own cases hereinbefore cited.

Let us now again take up the will here under consideration, ascertain, if we can, what its dominant purpose with reference to this land is, and then construe the language dealing therewith in the fight of this purpose and of these authorities.

It will not be necessary for us to decide whether Dr. Henry is a donee within the meaning of section 2765 of the Code or not; but it will be of some assistance in arriving at the dominant purpose of the will for us to remember that the direction to the executor, in event he should outlive the testatrix, to apply the income of her estate tó his support as long as he should live was not the main object of the will, but was a-mere incident thereto. A will was wholly unnecessary in order to provide for Dr. Henry, for, had the testatrix died intestate, he would have inherited all of her estate. This direction to the executor was given simply to provide for a contingency which might arise. In the original will it is the last item save one, and is as follows: “Should my husband outlive me, then it is my will that my property shall be kept intact during his natural life; that is, the income from the same for his support and maintenance.” The first devise contained in the will is to three acres of land to Mrs. Chappie C. Craig. Further on she is given a specific bequest of one thousand dollars and made the residuary legatee of the testatrix’s personal estate. In the original will three specific devises of land were made, all of which were afterwards revoked, and all of the testatrix’s real estate, except the specific devise made in the last codicil to Mrs. D. W. Henry and her children, was given to Ditto and Loraine Craig. To them she also bequeathed pieces of furniture, to which she evidently attached sentimental values, to wit, a table “formerly owned by President Jefferson Davis” and “the large mirror in the parlor.” These are the only bequests of that character contained in the will except one of the family portraits, which were at first given to Mr. Yerger, but by the first codicil this bequest was revoked for the reason that the testatrix preferred “for these portraits to be kept in the family,” and in the language of the will, were- bequeathed “to Mrs. Annie McNeill, in trust, ... to hold in her possession until Ditto Craig shall marry, and on that event, it is my will that said Mrs. McNeill shall give said portraits to the said Ditto Craig as a wedding gift in remembrance of me.” In the original will specific devises and bequests are made to six of the nephews and nieces of Dr. J. P. Henry. One of these was Mrs. Craig, the mother of Ditto and Loraine, two of the others she was unable to call by name, and referred to them as “Thomas Henry’s sole daughter,” and as “the sister of Dick Elliott,” and the devises to two other of them, Asa, or Gus, and J. P. Henry, were afterwards revoked and the land so devised permitted to go to Ditto and Loraine. With the exception of three specific devises afterwards revoked, the testatrix in her original will devised all of her land to Ditto and Loraine and to the heirs of their bodies. No provision whatever was made therein by which it could ever come into the possession of these nephews and nieces of Dr. Henry. She seems to have taken no thought of them at that time in this connection. Certainly it cannot be said that they were then, in this connection, objects of her bounty. Whatever rights'Ditto and Loraine had in the land were fixed by the terms of the original will, in which the testatrix evidently thought that she had fully disposed of the land in giving it to them and to the heirs of their bodies. It seems clear, therefore, that Ditto and Loraine Craig were the principal objects of the testatrix’s bounty, and that her dominant purpose was to provide for them; that in her original will she meant to and did give the land to them as long as either of them should live, and, upon the death of both, to the heirs of their bodies; that afterwards, in order to provide for a contingency which might arise, to wit, the death of both Ditto and Loraine without issue, she provided that in that event, but not until then, the land should go to the nephews and nieces of Dr. J. P. Henry.

In the Hawkins ease the court held that, upon the death of one of the life tenants, her interest in the estate passed to her heirs at law, who would hold it as such until the death of all the life tenants, when the ulterior limitation would take effect. In the case at bar the court held that a cross-remainder should be implied between Ditto and Loraine, by virtue of which Loraine, upon the death of Ditto, became possessed of the whole estate devised to both. In the first ease the instrument construed was a deed, while the instrument here is a will; and it may be that the court below was correct in not following the HawMns case in this particular, for cross-remainders are never implied in a deed. As to this, however, we are not called upon to express an opinion, for the reason that Raymond Craig is the only person who can complain thereof, and he has not assigned error.

Appellants contend, however, that, if the will is to be thus construed, the devise will be to a succession of three donees, with a limitation over upon the death of the third without issue, and therefore in violation of section 2765 of the Code, which provides that: “Any person may make a conveyance or a devise of lands to a succession of donees then living, not exceeding two, and to the heirs of the body of the remainderman, and, in default thereof, to the right heirs of the donor, in fee-simple.” If this is true, the devise to the third donee cannot take effect; and appellants claim that the land, upon the death of the second donee, would revert to the heirs at law of the donor, and that they are now her heirs at law for the reason that they are heirs of her husband, Dr. Henry, who, as she left no children, became her sole heir under the statute. According to the contention of appellees, the three donees of the one-half interest in the property here involved, Under this construction of the will, are, first, Dr. Henry; second, Ditto; and third, if a cross-remainder is to be implied, Loraine; or, if Hawkins v, Hawkins controls, Raymond and Loraine. The devise to Ditto and Loraine is, in effect, a devise to each of them, not for the life of the devisee alone, but for the life of the one who should be the longest liver. Hawkins v. Hawkins, supra. The lives of both Ditto and Loraine, therefore, are not to be counted in the succession of donees, but only that of Loraine, who turned out to be the longest liver. Had the testatrix devised this land in express terms to Ditto for. the life of Loraine there could be no question but that Loraine only should be counted in the succession of donees; and, as events have determined, that, in effect, is what she did. This being true, it becomes unnecessary for us to decide whether or not the life of Dr. Henry must be counted, in the succession of donees, for the reason that, if his life must be so counted, the succession will not be for more than two lives, to wit, that of Dr. Henry and of Loraine.

The conclusion which we have reached also renders it unnecessary for us to decide whether or not appellants are the right heirs of Mrs. Henry. This question can only be properly determined after the death of Loraine, in a litigation to which are parties the persons who would then be entitled to the property in event appellants are not such heirs, and it will not be material then unless the life of Dr. Henry must be counted in the succession of donees.

The suggestion of error is sustained, the judgment heretofore rendered is set aside, and the decree of the court below affirmed.

Affirmed.