Opinion
No. 36466.
May 19, 1947.
1. WILLS.
In construing a will, the intent of the testator is controlling and, in ascertaining such intent, regard must be had to the whole instrument and due weight given to every word of it.
2. WILLS.
Provision in holographic will devising realty without naming devisee, followed by provision "I likewise leave unto her my wife," naming wife, all personal property, was properly construed as devising realty to testator's widow, since otherwise the words "likewise" and "her" would be meaningless.
APPEAL from the chancery court of Claiborne county. HON. R.W. CUTRER, Chancellor.
Wells, Wells, Newman Thomas, of Jackson, for appellant.
The intention of the testator can be found only in the words actually used by him in his will. The court cannot make a will for him.
Ball v. Phelan, 94 Miss. 293, 49 So. 956; Barner v. Lehr, 190 Miss. 77, 199 So. 273; Byrd v. Wallis, 182 Miss. 499, 181 So. 727; Cross et al. v. O'Cavanagh et al., 198 Miss. 137, 21 So.2d 473; Dealy et al. v. Keatts et al., 157 Miss. 412, 128 So. 268; Ehrman v. Hoskins, 67 Miss. 192, 6 So. 776; Jones v. Carey, 122 Miss. 244, 84 So. 186; Keeley v. Adams et al., 149 Miss. 201, 115 So. 344; National Bank of Greece et al. v. Savarika et al., 167 Miss. 571, 148 So. 649, 652; Schlottman et al. v. Hoffman, 73 Miss. 188, 18 So. 893; Simpson v. Watkins, 162 Miss. 242, 139 So. 400; Yeates v. Box et al., 198 Miss. 602, 22 So.2d 411; Blatt v. Blatt, 79 Colo. 57, 243 P. 1099, 57 A.L.R. 221; Jackson v. Robinson, 195 Ark. 431, 112 S.W.2d 417; Mercer v. Kirkpatrick, 22 How. 644; 94 A.L.R. 26, Annotation on Construction of Wills; Page, Treatise on Laws of Wills, p. 812, Sec. 919.
The presumption against partial intestacy is insufficient in the instant case.
Whitaker v. Commercial Nat. Bank Trust Co., 179 Miss. 167, 174 So. 890; Joiner v. Joiner, 117 Miss. 507, 78 So. 369; McDonald v. Ledford, 140 Tenn. 471, 205 S.W. 312; Smith v. Baltimore Trust Co., 133 Md. 404, 105 A. 534; Webb v. Webb, 111 Ark. 54, 163 S.W. 1167; Estate of Young, 123 Cal. 337, 55 P. 1011; Blatt v. Blatt, supra; Jones v. Patterson, 271 Mo. 1, 195 S.W. 1004, L.R.A. 1917F, 660; Page, Treatise on Laws of Wills, p. 845, Sec. 926, p. 852, Sec. 927; 69 C.J., Wills, Sec. 1140.
There is a presumption that the testator intended a just and natural disposition of his property.
Cross et al. v. O'Cavanagh et al., supra; Patterson v. Patterson, 150 Miss. 179, 116 So. 734; Page, Treatise on Laws or Wills, p. 854, Sec. 928.
The devises and bequests in this will should be construed separately.
Harvey v. Johnson, 111 Miss. 566, 71 So. 824; Andrews, Executrix, v. Spruill, 271 Ky. 516, 112 S.W.2d 402; Booth v. Krug, 368 Ill. 487, 14 N.E.2d 645; Page, Treatise on Laws of Wills, p. 831, Sec. 922.
Construction in accordance with the rules of grammar is to be preferred to a construction in violation thereof.
Williamson v. Williamson, 57 N.C. 281, 286; Evans v. Knorr (Pa.), 4 Rawle 66, 68; Pagano v. Cerri, 93 Ohio St. 345, 112 N.E. 1037, 1040; Webster's Collegiate Dictionary (5 Ed.), word "likewise."
The will does not show a legally enforceable intention to leave all property to the wife of the testator.
Harvey v. Johnson, supra; United States Fidelity Guaranty Co. v. Douglas, Trustee, 134 Ky. 374, 120 S.W. 328.
As used in this will the word "likewise" shows that the testator has finished one devise and that he now begins a new one.
Horwitz v. Norris, 60 Pa. 261, 282; Rae v. Baker (Tex.), 38 S.W.2d 366.
This will is incomplete and void in part. The court cannot, by construction, complete it.
Dealy v. Keatts, supra; Ehrman v. Hoskins, supra; Schlottman et al. v. Hoffman, supra.
Truly Truly, of Fayette, for appellees.
The sole object in construction of a will is to ascertain the intention of the testator. This intention must be gathered from the entire will.
Bullard v. Bullard, 132 Miss. 544, 97 So. 1; Cross et al. v. O'Cavanagh et al., 198 Miss. 137, 21 So.2d 473; Henry v. Henderson, 103 Miss. 48, 60 So. 33; National Bank of Greece et al. v. Savarika et al., 167 Miss. 571, 148 So. 649; Strickland et al. v. Delta Investment Co., 163 Miss. 772, 137 So. 734; Sorsby v. Vance, 37 Miss. 564; Yeates v. Box, 198 Miss. 602, 22 So.2d 411; Duane et al. v. Stevens et al., 137 N.J. Eq. 329, 44 A.2d 716; Page on Wills (3 Ed.), p. 888, Sec. 936.
There is a presumption that when a person makes a will, thereby substituting his desires as to the disposition of his property for the disposition the law makes, he intends to dispose of all of his property and not to leave himself intestate as to any part of it.
Bullard v. Bullard, supra; Joiner v. Joiner, 117 Miss. 507, 78 So. 369; Vaiden v. Hawkins, 59 Miss. 406; Whitaker v. Commercial Nat. Bank Trust Co., 179 Miss. 167, 174 So. 890; Page on Wills (3 Ed.), p. 845, Sec. 926.
The presumption that testator intended a just, natural and reasonable disposition of his property does not apply, in its usual sense, to this case.
Cross et al. v. O'Cavanagh et al., supra; Dealy v. Keatts et al., 157 Miss. 412, 128 So. 268.
The will in this case, when all the words used are considered, can only be construed to hold that J.M. Taylor died completely testate, with Maggie W. Taylor devisee of all his property.
Dealy v. Keatts et al., supra; Keeley v. Adams, 149 Miss. 201, 115 So. 344; Doyle v. Maryland Casualty Co., 168 Ky. 795, 182 S.W. 946; Evans v. Knorr (Pa.), 4 Rawle 66; Rae et al. v. Baker (Tex.), 38 S.W.2d 366; West Jersey Trust Co. v. Hayday, 124 N.J. Eq. 85, 199 A. 407; 25 Words Phrases 294, word "likewise;" Century Dictionary, Revised and Enlarged Edition, word "her."
Argued orally by Miss Martha Gerald, for appellant, and by E.G. Truly, for appellees.
Bill was filed by appellant to construe the will of her father, J.M. Taylor, and for cognate relief. The will is holographic and in the following form:
"I, J.M. Taylor of Port Gibson, Miss. of sound and disposing mind and memory and being over twenty one years of age, do hereby make, publish and declare this to be my last will and testament revoking all others:
"I leave, will and devise any and all real estate I own in Claiborne and Lowndes Counties or elsewhere in Mississippi or other states also any gas and oil or other mineral holdings or leases also any choses in action.
"(2) I likewise leave unto her my wife Maggie W. Taylor all personal property I own of every nature and kind including my Life Insurance in Woodmen of the World, and the Equitable Life Assurance Society of New York —
"I name and appoint said Maggie W. Taylor my executrix without bond or necessity of inventory.
"J.M. Taylor."
The bill prayed an adjudication that, as to the real estate of the testator, he died intestate and that complainant, who is his daughter, be decreed the owner as the only child, of an undivided one-half interest therein. A general and special demurrer were filed and both sustained. From the decree dismissing the bill Mrs. Brumfield appeals. The widow, Mrs. Maggie W. Taylor, died pendente lite, and revivor was decreed, substituting her sister, Mrs. Englesing, who is her sole heir, and Frank C. Englesing, her administrator, as parties.
We shall confine our discussion to the validity of the will as a devise of the real property, that being the only point argued by appellant.
It will be sensed at once that the absence of a designated devisee in the second paragraph of the purported will must be supplied, if at all, from the implications of the words `likewise' and `her my wife Maggie W. Taylor,' in the sentence following.
Both parties agree upon the applicable principles of construction. These are, succinctly stated, that the intent of the testator is controlling, and that in ascertaining such intent regard must be had to the whole instrument, and due weigth given to every word of it. Ball v. Phelan, 94 Miss. 293, 49 So. 956, 23 L.R.A. (N.S.) 895; Dealy v. Keatts, 157 Miss. 412, 128 So. 268; Cross v. O'Cavanagh, 198 Miss. 137, 21 So.2d 473; Yeates v. Box, 198 Miss. 602, 22 So.2d 411.
Appellant, however, argues that there is no material from which a definite intent to dispose of realty can be constructed; that courts cannot reform a will; that a presumption should be invoked that the testator intended a just and natural disposition thereof, and an intent to exclude his daughter is therefore negatived; and that the devises and bequests should be construed separately.
It is not clear how a devise to the wife would be otherwise than just or natural, to say nothing of the conformity to the prescribed marriage contract which binds the contracting parties to cleave only unto each other, though this require forsaking all others. Yet we need not rationalize our conclusions.
The testator by his own language bequeathed all his personalty to his wife, Maggie W. Taylor. The second paragraph is tied to the third by the testator's desire to conform the disposition of the personalty with that intended as to the realty. "Likewise" borrows from the preceding paragraph the same manner and method of disposition; the pronoun "her" finds its antecedent in the spirit and purpose of the devise. The pronoun would be ambiguous were it not placed in apposition to the full name of his wife; it would be meaningless if there were no antecedent expressed or implied. Wherefore, we must choose between disregarding the words "likewise" and "her" as meaningless or useless, or "by giving due weight to every word of" the will construe it in a manner that will invest each word with meaning and significance.
The learned chancellor found that the intention of the testator was to devise his real property "likewise" to his wife, with which conclusion, being compatible with reason and justice, and doing violence to neither grammar lexicon, we are constrained to agree.
Affirmed.