Opinion
No. 36017.
March 25, 1946.
1. WILLS.
The construction of will of testatrix who was domiciled in Tennessee when the will was made is governed by Tennessee law.
2. WILLS.
Under Tennessee law, the quoted words in testatrix' will devising land to named woman and providing that if devisee should "die without heirs of the body living at the time of her death" then the land should vest in another person in fee, meant death of devisee during testatrix' lifetime, unless it should appear from the whole will that testatrix meant death at any time either before or after testatrix' death.
3. WILLS.
Property devised to devisee in will cannot vest in devisee until testatrix' death.
4. WILLS.
A will must be construed in connection with a codicil thereto.
5. WILLS.
Under Tennessee law, a will devising plantation to devisee and providing that if devisee should die without heirs of the body living at the time of her death then the plantation should vest in other persons was intended by testatrix to mean that the limitation over on death of devisee should attach to the plantation when devisee's interests therein vested and should become effective on devisee's death thereafter without heirs of devisee's body then living, in view of terms of codicil.
6. WILLS.
Where Tennessee will devised one-half of realty to devisees and provided that if either of them should die without heirs of the body living at the time of death then the share so devised should vest in another person in fee, and after testatrix' death one of the devisees died without children living at the time of such devisee's death, the other person was entitled to the fee of such devisee's one-half of the realty, without regard to whether the interest of the remaining devisee was thereby affected, in view of terms of another provision in will and a codicil.
APPEAL from the Chancery court of DeSoto county, HON. V.D. ROWE, Chancellor.
Brewer Sisson, of Clarksdale, and L.E. Farley, of Memphis, Tenn., for appellant.
At common law, and under the law of Mississippi, courts are without jurisdiction to render merely declaratory judgments, without awarding remedial process. Such a judgment or decree, rendered on abstract questions, based on no present matured justiciable right, is void.
33 C.J. 1097, Sec. 57; 1 C.J.S. 1018, Sec. 18 (b).
A litigant is not bound, or estopped, from assuming a given position in a legal proceeding, because in some prior proceeding, not progressing to the point of valid adjudication, he assumed a different position, or in an unsworn pleading made statements or admissions, contrary to the position assumed in the later litigation.
Pigott v. Pigott, 112 Miss. 873, 73 So. 800; Carradine v. Carradine, 33 Miss. 698; Crump v. Gerock, 40 Miss. 765; Co-operative Life Association v. Leflore, 53 Miss. 1; Tate v. Tate, 126 Tenn. 172.
A testator is presumed to use technical terms in the sense such terms have by the law of his domicile. Therefore, when a will made by a person domiciled in another state comes before the courts of Mississippi for interpretation as to the intention of the testator in the use of technical terms, which have received under the law of the domicile a definite fixed meaning, the law of the domicile controls as to the meaning to be given such terms.
Adams v. Farley (Miss.), 18 So. 390; Crusoe v. Butler, 36 Miss. 150; Ball v. Phelan, 94 Miss. 293, 49 So. 956; Rose v. Rambo, 120 Miss. 305, 82 So. 149; 69 C.J. 44.
Under the decisions of the Supreme Court of Tennessee, and by the weight of authority, in the absence of "peculiar facts" indicating a different intention, a devise to "A, but if he should die without issue (or without children) then to B" refers to the death of A before the death of the testator; and if A survives the testator, the limitation over fails.
Vaughn v. Cator, Executor, 85 Tenn. 302, 2 S.W. 262; Meacham v. Graham, 98 Tenn. 190, 39 S.W. 12; Katzenberger v. Weaver, 110 Tenn. 620, 75 S.W. 937; Frank v. Frank, 120 Tenn. 569, 111 S.W. 1119; Scruggs v. Mayberry, 135 Tenn. 586, 188 S.W. 207; Page on Wills, Sec. 1140.
The same rule obtains in Mississippi.
Bibby v. Broome, 116 Miss. 70, 76 So. 835; Nations v. Colonial United States Mortgage Co., 115 Miss. 741, 76 So. 642.
Section 837 of the Code of 1942, brought forward from prior Codes, requiring limitations dependent upon the death of a person without issue, children, etc., to be interpreted as limitations to take effect upon the death of such person without issue, children, etc., living at the time of his death, merely changed the rule of law theretofore obtaining, so as to make such language import a definite rather than an indefinite failure of issue. It does not refer to the time such person shall die.
Nations v. United States Mortgage Co., supra; Frank v. Frank, 120 Tenn. 576, 111 S.W. 1119, Code of 1942, Sec. 837.
An estate in fee given by one clause of a will by clear and decisive language will not be diminished to a lesser estate by subsequent clauses in language less clear and decisive.
Harvey v. Johnson, 111 Miss. 566, 71 So. 824; Fox v. Merchants' Bank Trust Co., 155 Miss. 188, 124 So. 321; Smith v. Reynolds, 173 Tenn. 579, 121 S.W.2d 572; 15 Tennessee Law Review 729-730; 3 Page on Wills 360, Sec. 1113.
Dulaney Bell, of Tunica, for appellee.
The first rule for the construction of wills is to ascertain the intention of the testator and give it effect if lawful.
Hudson v. Gray, 58 Miss. 882; Hoggatt v. Clopton, 142 Tenn. 184, 217 S.W. 657.
Mrs. Knight on September 23, 1929, executed her will in which she twice used the language, "die without heirs of her body living at the time of her death," once in Item XIII and once in Item XI, which is identical in form with Item XIII except that the determinable fee goes to one person instead of two and the words "absolutely and in fee" are not used in connection with the executory devise. If in one of these two items the testatrix intended to refer to an event which must occur within her own lifetime and not at the time the devisee died, that is, if she meant a substitutionary devise and really meant "at the time of my death" instead of "at the time of her death," then Mrs. Knight had the same intention with respect to the other item. But if by either item she meant to give a determinable fee and an executory devise, then we are forced to conclude that her purpose was the same in the other item. By her codicil No. II executed on June 6, 1930, Mrs. Knight very definitely and clearly showed her intention and placed her own construction upon the language she had used. She directed that the trustee, if Glover Plantation should be sold, should hold the proceeds during the life of Kate Nash Torian and after her death dispose of it in accordance with Item XI of the will. This was not making a change in the will as it related to the estates devised. It was her construction of the will. She was taking it for granted that no one would infer that she meant anything except what her words would mean to the average person. She has provided in Item XI for Kate Nash Torian to have the property and to have a title which could be devised to or inherited by Kate's children; but if Kate left no descendant then it was to be disposed of in accordance with this item and would then go to Clemmie L. Howard and the other persons named as executory devisees. We respectfully submit that this construction of the language of the will controls the pending case.
It is urged by counsel that "where a testator, domiciled in a state other than Mississippi, uses words in his will which have, under the law of the domicile, a fixed technical meaning, they must be given that meaning by the courts of this state, in determining the testator's intention." The words used by Mrs. Knight do not have any fixed technical meaning in the State of Tennessee as contended by counsel. In any case in which it is contended that the law of the domicile requires a construction of a will different from that which would otherwise be reached under the law of the forum or the law of the situs it would seem to be a sound requirement that the party contending for application of the law of another jurisdiction should show that beyond any serious question such application would be made if the case were pending there. This we submit cannot be done in the case at bar. On the contrary, the Tennessee courts following the Tennessee decisions, each rendered with respect to the particular will then before the court, would very properly reach the conclusion that Mrs. Knight devised a determinable fee to Mrs. Allen with an executory devise to Mrs. Howard.
See Hoggatt v. Clopton, supra; Hottell v. Browder, 13 Lea. 676; Eckhardt v. Phillips (Tenn.), 137 S.W.2d 301.
Mrs Knight was registered as a qualified elector of DeSoto County, Mississippi, in 1930 and again in 1934. She had lived there about five years before she died. Most of her property was in Mississippi. Her original home was in Mississippi and as shown by the testimony of Mr. Sanders she always maintained living quarters on the Mississippi land and spent much time there. The last codicil, in which the will and preceeding codicils are confirmed and made final, describes Mrs. Knight as a resident of Glover, Mississippi.
The effect of a codicil is to republish the will and make it speak again from the new date.
Re Brann, 219 N.Y. 263, L.R.A. 1918B, 663.
Since the will speaks from that date, it must be construed as if it had been made or read and approved by the testator just before the occurrence of that event.
Milton v. Milton, 193 Miss. 563, 10 So.2d 175.
Since a will becomes operative when, but not until, a testator dies, prior to which time he has full control over it, it must be interpreted as if made just preceding that event, and applied to all property then owned by him, embraced within the will's description thereof, unless a contrary intent appears.
Milton v. Milton, supra.
In no event, however, is the doctrine of lex domicilii applicable unless it can be relied upon as a safe aid to reveal definite intention and never when there is any doubt as to what the courts of the domicile would hold in the particular case.
Wills in which language similar to that used by Mrs. Knight is included have often been before the Mississippi courts and have been construed as creating determinable fees with executory devises.
Hanie v. Grissom, 178 Miss. 108, 172 So. 500; Norfleet v. Norfleet, 151 Miss. 790, 119 So. 306; Busby v. Rhodes, 58 Miss. 237, Code of 1942 Sec. 837.
The provisions of this statute that a contingent limitation in a will depending upon the dying of any person without issue, or issue of the body, or without children, etc., shall be interpreted as a limitation to take effect when such person shall die not having such heir or issue, or child, has reference to the death of the devisee or legatee, and in the absence of an intention to the contrary expresssly or plainly declared on the face of the will, appears to require that the limitation over be interpreted as taking effect on the death of one of the devisees without issue, at any time.
Hanie v. Grissom, supra; Code of 1942, Sec. 837.
It is true that in Mississippi, as in Tennessee and many other states, an indefinite reference to death such as "in case he dies" or "in the event of his death" simply and without further words of contingency may refer to death before that of the testator.
Sims v. Conger, 39 Miss. 231.
Although the Mississippi courts in construing wills give some effect to the decisions of the courts of the testator's domicile, in no case does it appear that it has done so when this required the setting aside of a Mississippi statute.
Words used in an instrument of conveyance of an interest in land which, by law of the state where the land is, have a given operative effect unless a contrary intent is shown by admissible evidence, will be accorded such effect in any state.
Neblett v. Neblett, 112 Miss. 550, 73 So. 575; Doe ex dem. Wynne v. Wynne, 23 Miss. 251; Mahorner v. Hooe, 9 Smedes M. (17 Miss.) 247; Wells v. Wells, 35 Miss. 638; Restatement Conflict of Law, Sec. 214.
Compare Rose v. Rambo, 120 Miss. 305, 82 So. 149; Nations v. Colonial United States Mortgage Co., 115 Miss. 741, 76 So. 642.
It is said that if Hanie v. Grissom, 178 Miss. 108, 172 So. 500, has the meaning insisted upon by us, it is unsound and that Section 837 of the Mississippi Code is not applicable. It seems that the corresponding Tennessee statute would not be applicable in a Tennessee court passing upon the will of a resident of Tennessee devising Tennessee land. It does not follow that in this Mississippi court considering the will of a resident of Mississippi, devising Mississippi land, the Mississippi statute is not applicable. The legislature of Mississippi has the right to enact such statutes as it deems proper governing the interpretation of wills devising Mississippi property, and the Supreme Court of Mississippi has the privilege of construing and applying such statutes as the court deems proper without regard to the construction placed upon similar statutes in other states. Hanie v. Grissom cannot be brushed aside as unsound. It gives the statute a reasonable construction. It makes words in a will mean just what they normally imply. But if the case were wholly unsound it is controlling. The case was decided in 1937 and since that time the legislature has convened in regular session four times, in 1938, in 1940, in 1942 and in 1944, and the statute has been brought forward in the Code of 1942. This construction is now a part of the statute.
Counsel for appellant rely upon the ancient and well settled rule that a clear grant of a fee in one clause of a will cannot be reduced by subsequent ambiguous language which merely raises a doubt or inference.
Fox v. Merchants' Bank Trust Co. 155 Miss. 188, 124 So. 321; Harvey v. Johnson, 111 Miss. 566, 71 So. 824.
This rule is often appealed to by litigants but never applied by the court except in a case where the court is unable to find the testator's intention in the subsequent language. There is a clear statement of intention in the devise itself. There is no ambiguity as to where Mrs. Knight wished the title to rest as to the land given to Mrs. Allen if Mrs. Allen should die "without heirs of the body living at the time of her death." It does not give rise to a doubt as to Mrs. Knight's intention. It does not give rise to an inference, but to a certainty.
See Torian v. Sanders, 178 Miss. 18, 172 So. 142.
It is contended on behalf of appellant that the former decree was in the nature of a declaratory judgment and that there is no statute in Mississippi which authorizes such a judgment.
The appellant was estopped by the deed, partition proceedings and former decrees from claiming title under the will of his wife and those decrees constituted res adjudicata.
Taylor v. Bell, 194 Miss. 112, 11 So.2d 825.
It was no moot question which was before Chancellor Sledge and later before the Supreme Court in Torian v. Sanders, supra; and later before Chancellor Smith. Nor was this question prematurely raised and litigated.
Argued orally by L.E. Farley and Ed C. Brewer, for appellant, and by J.W. Dulaney, for appellee.
In September 1929, Mrs. Clemmie T. Knight, who was then domiciled in the State of Tennessee, made a will containing a number of devises and bequests, among which were the following items:
"Item XI. I hereby give, devise and bequeath what is known as the Glover Plantation in DeSoto County, Mississippi, containing 2216 acres, more or less, and all personal property located on same to Kate Nash Torian. If the said Kate Nash Torian should die without heirs of her body living at the time of her death, then the property herein devised shall vest in Jean Amis, Julia Ann, eldest grand-daughter of Lee McLennan, Winfield Wilson, Qanita Williamson and Clemmie L. Howard."
"Item XIII. I hereby give, devise and bequeath to Willie Woodson Gaither and Margaret Sangster Roach one-half of all the real estate in the State of Mississippi of which I may die seized and possessed, coming to me under the will of my husband, W.C. Knight. If the said Willie Woodson Gaither and Margaret Sangster Roach or either of them should die without heirs of the body living at the time of her death, then it is my will that the share of real estate so devised shall vest in Helen Knight Howard absolutely and in fee."
"Item XIV. I hereby give, devise and bequeath to Helen Knight Howard absolutely and in fee, one-half of all real estate located and situated in the State of Mississippi, of which I may die seized and possessed, coming to me under the will of my husband, W.C. Knight."
"Item XVIII. All the residue of my estate which I may have failed to dispose of herein or which may fall into my estate by reason of lapsed devises or bequests or otherwise, I devise and bequeath to Helen Knight Howard."
Item XIX appoints Joe Sanders trustee "of my will, hereby vesting in him . . . full power and authority to divide equally and ratably the property devised herein and to make deeds of conveyance to the respective beneficiaries." During the course of the administration of the trust the trustee divided the property devised by Item XIII of the will, setting apart to each of the devisees therein her portion thereof, and petitioned the court below, in which petition the three devisees of that item of the will joined, to authorize him to execute a deed to each of them to the portion set apart to her; the deeds to Mrs. Allen, formerly Margaret Sangster Roach, and Mrs. Willie Woodson Gaither to stipulate that it is "subject to the limitation in favor of Mrs. Helen Knight Howard as set forth in Item XIII of said will." The Court approved this partition of the property and authorized the execution of the deeds, and they were accordingly executed, delivered to, and accepted by, the grantees therein.
Mrs. Gaither is still living but Mrs. Allen died without heirs of the body living at her death, leaving a will by which she devised the property so set apart to her, to her husband, L.K. Allen. Mrs. Helen Knight Howard then filed this bill of complaint against Allen, claiming the land under the limitation over in Item XIII of Mrs. Knight's will and praying that his claim thereto be canceled and that she be given possession of the land. The decree of the Court below was in accordance with this prayer of the bill.
One of the appellant's contentions is that the limitation over in Item XIII of the will on the death of Willie Woodson Gaither and Margaret Sangster Roach refers only to their death during the lifetime of the testatrix.
The question to be determined then is the time at which the death of Margaret Sangster Roach must occur in order to cause the property here devised to her to go over to Helen Knight Howard. If Hanie v. Grissom et al., 178 Miss. 108, 172 So. 500, should control, the death referred to is death at any time either before or after the death of the testatrix, but as Mrs. Knight was domiciled in Tennessee when this will was made, its construction and interpretation, in order to understand its meaning, is governed by the law of that state under which such words in a will refer to the death of the devisee during the lifetime of the testatrix; Meacham v. Graham, 98 Tenn. 190, 39 S.W. 12; Katzenberger v. Weaver, 110 Tenn. 620, 75 S.W. 937; Frank v. Frank, 120 Tenn. 569, 111 S.W. 1119; unless it appears from the whole will that the testatrix meant death at any time, either before or after her death, Hoggatt v. Clopton, 142 Tenn. 184, 217 S.W. 657, so we turn now to the will and its codicils.
If the testatrix meant the death of Gaither and Roach during her, the testatrix', lifetime, it would have been wholly unnecessary for her to provide that in that event the property devised to them should vest in Mrs. Howard for that would have been the result of their death during the testatrix' lifetime under the residuary clause of the will.
By Item XI of her will, Mrs. Knight devised and bequeathed Glover Plantation and all personal property thereon to Kate Nash Torian, with a limitation over on her death similar to that in Item XIII of the will here under consideration. The limitation in Item XI being: "If the said Kate Nash Torian should die without heirs of her body living at the time of her death, then the property herein devised shall vest in Jean Amis, Julia Ann, eldest granddaughter of Lee McLennan, Winfield Wilson, Qanita Williamson and Clemmie L. Howard."
By Item XVI of her will, Mrs. Knight appointed a trustee for the property devised to Kate Nash Torian, "vesting in him full power to manage and control the same for her (Kate Nash Torian) best interests and pay over to her the annual income from same," the trust to end "if and when Kate Nash Torian shall have been married for a period of ten years and her husband shall be alive," and "is capable of managing her said estate."
In June 1930 Mrs. Knight added a codicil to her will providing that "in the event the operations of Glover Plantation should prove unprofitable for three successive years, and it should be to the best interests of the said Kate Nash Torian that said plantation be sold and the proceeds thereof reinvested, then I hereby direct, authorize and empower by said trustee to sell said plantation, provided the said Kate Nash Torian approves such sale and joins in the deed, and said trustee shall reinvest the proceeds thereof according to its best judgment and discretion, advising with the said Kate Nash Torian as to such reinvestments, and shall hold the same for and during the term of the natural life of the said Kate Nash Torian, the principal to be disposed of in accordance with Item XI of my will." (Emphasis supplied.)
The property devised to Kate Nash Torian could not, of course, vest in her until the death of the testatrix, and this codicil, in connection with which the will must be construed, Joiner v. Joiner, 117 Miss. 507, 78 So. 369, 69 C.J. 120, indicates that the testatrix interpreted Item XI of her will as meaning and intended it to mean, that the limitation over therein on the death of the devisee should attach to the property when her interests therein vested and should become effective on her death thereafter without heirs of her body then living. The trustee's duty under this codicil is to manage the property into which that devised in Item XI of the will might have been converted, and to pay the income thereof to the devisee "during her natural life," "the principal to be disposed of in accordance with Item XI of" the will; that is, "if the said Kate Nash Torian should die without heirs of her body living at the time of her death" to pay or deliver the principal to "Jean Amis, Julia Ann, eldest granddaughter of Lee McLennan, Winfield Wilson, Qanita Williamson and Clemmie L. Howard." Items XI and XIII of this will must be given the same construction unless there is something in the will indicating the contrary, and as there is no such indication it follows that the limitation over on the property devised in Item XIII to Margaret Sangster Roach attached thereto when the property vested in her and became effective on her death without heirs of her body then living, resulting in the property becoming vested in Mrs. Howard.
Another of the appellant's contentions is that if the limitation over in Item XIII of the will survives the death of the testatrix, Mrs. Allen became vested on the death of the testatrix with an estate in fee simple to the property devised to her, and the attempted limitation over on her death without heirs of her body is not sufficiently clear and decisive to be enforcible under the rule announced in Smith v. Reynolds, 173 Tenn. 579, 121 S.W.2d 572; Harvey v. Johnson, 111 Miss. 566, 71 So. 824; Fox v. Merchants' Bank Trust Co., 155 Miss. 188, 124 So. 321.
In support of this contention counsel for the appellant say in effect that the meaning of this provision of Item XI of the will is vague and uncertain for the reason that it does not appear with certainty therefrom whether on the death of one of these devisees without heirs of her body her interest in the land is to vest in Mrs. Howard, without any effect on the interest in the land of the other devisee who is still living, or whether the interests of both devisees would on the death of one of them without heirs of her body vest in Mrs. Howard. We are not concerned with what effect, if any, the death of Mrs. Allen may have on the property here devised to Mrs. Gaither, and nothing here said must be understood as an expression of an opinion thereon. The meaning of this limitation over is clear at least to this extent, that on the death of one of the devisees without heirs of her body, her interest in the land devised vests in Mrs. Howard. Any doubt that could arise as to the effect, if any, of the death of one of these devisees without heirs of her body has on the interest of the property devised to the other who is still living, can not render obscure that, which without this doubt, is clear, and means, to partly repeat, that on the death of one of these devisees without heirs of her body her interest in the land vests in Mrs. Howard although the interest of the other devisee may, or may not, be affected thereby.
The decree of the court below being in accord with the foregoing views will be affirmed.
Affirmed.
L.A. Smith, Sr., J., took no part in this decision.