Opinion
No. 29313.
May 16, 1932.
1. WILLS.
In construing will, words used must be construed according to their interpretation and meaning as defined in law of decedent's domicile.
2. WILLS.
Court construing will may consider surroundings of testator when executing will.
3. COURTS.
Local court is not bound by decision of court of foreign state construing identical will, where circumstances surrounding testator at time of execution were not presented in latter court.
4. COURTS.
Local court in following law of state of testator's domicile looks to general line of decisions on subject-matter presented.
5. WILLS. Terms of will held to devise to daughter base or determinable fee with limitations and conditions and terminable as of date of daughter's death.
Language of will was, in substance, that testator gave to daughter all balance of property, both real and personal, upon conditions and limitations to effect that, if daughter died without issue of her body, property was thereby given to testator's brothers and sisters or their descendants, the descendants of each brother or sister to take that share which brother or sister would have taken had he or she been living.
6. PERPETUITIES.
As to share given direct to testator's daughter, Two Donee Statute, as it read in 1871 did not affect right of testator's sisters and brother nor their descendants from taking as purchasers under will (Code 1930, section 2116).
7. WILLS. Under will, share given wife for life did not vest in daughter if she survived wife, but vested in testator's brothers and sisters, if daughter died at any time without issue of her body.
Under will, testator gave daughter share of property on condition that, should she die without issue of her body, property was thereby given to testator's brothers and sisters or their descendants, and also provided that, upon death of wife, testator gave to daughter portion of property therein given and devised to wife for her life and upon the same limitations.
8. WILLS.
Term "brothers and sisters" embraces brothers and sisters of whole and of half blood.
9. WILLS.
Term "right heirs," as used in statute respecting limitation on failure of issue, means those persons who, in event of testator's death, would inherit property as heirs at law (Code 1906, section 2765).
10. WILLS.
Terms "lawful heirs," "right heirs," and "heirs" are synonymous.
11. PERPETUITIES.
Testator's brothers and sisters of half blood, not being right heirs, gift over to them jointly with brothers and sisters of whole blood made them third donees under statute, and they could not take under will (Code 1906, section 2765).
12. JUDGMENT.
Decree dividing funds paid into court in condemnation proceeding and adjudicating interests of testator's daughter and descendants of brothers and sisters of whole blood bound them in subsequent suit.
13. JUDGMENT.
That testator's half brothers and sisters, not entitled to take under will, were not parties to suit involving division of proceeds in condemnation proceeding, did not affect rights of those whose rights were adjudicated.
14. JUDGMENT.
Judgment in former case is res judicata of questions specifically presented by pleadings, and of all questions involved which could have been presented.
APPEAL from chancery court of De Soto county. HON. PHIL STONE, Special Chancellor.
Holmes Bowdre, of Hernando, for appellants.
When the sole question is the sense in which certain words or phrases are used and not their legal effect, they will be construed according to the lex domicilii in the case of real as well as personal property.
5 R.C.L., 1019, sec. 106; Adams v. Farley, 18 So. 390; Crusoe v. Butler, 36 Miss. 150; Ball v. Pheland et al., 94 Miss. 339; Rose v. Rambo, 120 Miss. 305; Ford v. Ford, 80 Mich. 42, 44 N.W. 1057; Minor on Conflict of Law, 338.
Words of supvivorship in a will, unless there is a manifest intent to the contrary, always relates to the death of the testator, and that, in the absence of a contrary intent, a will always speaks as from the date of the testator's death.
Smith v. Smith, 139 Ala. 406; Hoover v. Hoover, 116 Ind. 498; Smith v. Smith, 157 Ala. 79, 88; Haigler v. Haigler, 202 Ala. 480, 80 So. 864; Fowlkes v. Clay, 88 So. 651, 654; O'Connell v. O'Connell, 72 So. 81; Spiral v. Frenkel, 97 So. 104; Hughuley v. Burney, 100 So. 817.
If there is no previous interest given, the period of division is the death of the testator and survivors at his death take the whole; but if a previous life estate be given, then the period of division is the death of the life tenant, and survivors at such death take the whole.
Burleson v. Mays, 189 Ala. 107, 119, 66 So. 36, 40; Reynolds v. Reynolds, 95 So. 180; Fowlkes v. Clay, 88 So. 651.
The Mississippi Courts are in full accord with the rule followed in Alabama, that words of survivorship in a will, unless there is manifest intent to the contrary, always relate to the death of the testator, but if a previous interest of life estate is given, they relate to the death of the life tenant.
Nations v. Colonial Mortgage Company, 115 Miss. 741.
The great weight of authority in the United States is that the time of defeasance under a devise for life with remainder in fee and to third parties if the remaindermen die childless or without issue, is the termination of the life estate, and if the remainderman survives the life tenant, he takes the fee.
Bradshaw v. Butler, 110 S.W. 420; Rener v. Renfro, 104 S.W. 951; Duzan v. Chappel, 84 N.E. 775; Satterfield v. Tate, 64 S.E. 60; Garrard v. Kendall, 121 S.W. 996; Reuling Extr. v. Rueling, 126 S.W. 151; Jewell v. White, 179 S.W. 212; White v. White's Guardian, 182 S.W. 942; In re Farmers Loan Trust Co., 82 N.E. 181; Hohnboch v. Hohnboch, 139 N.W. 731; Baker v. Thomas, 189 S.W. 215; Harrington v. Cooper, 189 S.W. 667; Welch v. Crowe, 155 N.E. 859; Michael v. Minchin, 101 A. 283; Fulwiler v. McClun, 120 N.E. 458; In re Kelsey's Estate, 189 N.Y.S. 60; Starnes v. Sanders, 108 S.E. 37; Bonner v. Wedekind, 237 S.W. 394; Mahoney v. Mahoney, 120 A. 342; In re Turner's Will, 200 N.Y.S. 476, 206 App. Div. 294; Ensimer v. Grimes, 275 S.W. 19; Doris v. Scharf, 133 A. 197; Ewart v. Dolby, 5 S.W. 428; Boynton v. Boynton, 165 N.E. 489; Rankin v. Rankin, 12 S.W. 319; Parpoint v. Parpoint Admr., 15 S.W. 513; Page on Wills, secs. 1140, 1142.
Courts do not look with favor on indefinite failure of issue and are inclined to limit the devise over in case the remainderman die without issue to a period before distribution and usually the gift over in case of death during the life of the testator, but where the gift is the remainder, then the time of death refers to death occurring before the termination of the particular estate.
Schouler on Wills, sec. 1053.
It has been a settled rule in this state that where an estate is devised to one for life with remainder to another with the further provision that if the remainderman should die without children or issue, then to a third person, the words dying without children or issue have reference to the death of the remainderman before the termination of the life estate or, if the remainderman survives the life tenant, his estate becomes absolute.
Eakins v. Eakins, 191 Ky. 61; Freund v. Freund, 110 A. 449; Boothe v. Eberly, 124 Md. 22.
If there is a particular estate preceding the gift over, the latter will take effect if the contingency happens at any time during the existence of the particular estate. In such case the death without children surviving refers to death before the death of the life tenant, unless the wills shows that the testator intended to refer to a later date.
Risser v. Ayers, 306 Ill. 293, 137 N.E. 851; Church v. Ball, 236 Penn. 605, 84 A. 1099; Fitzgibbon Estate, 272 Penn. 345, 116 A. 289.
This identical will of Jacob K. Swoope has been construed by the Supreme Court of Alabama. The court held in this case that the words "die without issue" as used in the will of Jacob K. Swoope, refer to the death of his daughter, Tempe, before the death of the testator, and as she survived the testator, she took the lands devised to her in fee.
Darrow v. City of Florence, 91 So. 606.
A gift to a class is a gift of an aggregate sum to a body of persons uncertain in number at the time of the gift, to be ascertained at a future time, who are all to take in equal or some other definite proportion, the share of each being dependent for its amount upon the ultimate number. Under a bequest to a class, subject to increase or diminution by reason of future births, or death, the entire interest vests in such persons only as fall within the class at the date of distribution.
28 R.C.L., page 260, sec. 233.
The general rule therefore is that a gift to a number of persons not named, but answering the general description, is a gift to a class.
28 R.C.L., page 261; Branton v. Buckley, 99 Miss. 122.
It is the general rule that a devise to brothers and sisters includes the half blood as well as the whole blood.
40 Cyc. 1453; 9 Ann. Cases 140; Lusby v. Cobb, 80 Miss. 715.
Descendants are those who have issued from an individual including children, grandchildren, and their children to the remotest degree — issue of any decree.
Huston v. Read, 32 N.J. Eq. 591, 599; Bryan v. Walton, 20 Ga. 480, 512; Bates v. Gillett, 24 N.E. 611, 612, 132 Ill. 287; Van Buren v. Dash, 30 N.Y. 393, 415; Tompkins v. Verplanck, 42 N.Y.S. 412, 415, 10 App. Div. 572; Levering v. Orrick, 54 A. 620, 622, 97 Md. 139; Carter Oil Co. v. Scott, 12 Fed. 780, 783; Minshall v. Berryhill, 205 P. 932, 83 Okla. 100; Twaites v. Waller, 110 N.W. 279, 133 Iowa 84; Lich v. Lich, 138 S.W. 558, 158 Mo. App. 400; Rasmusson v. Unknown wife of Hoge, 293 Ill. 101, 127 N.E. 356; Strout v. Strout, 117 Me. 357, 104 A. 577; Green v. Hussey, 228 Mass. 537, 117 N.E. 798; Page on Wills (2 Ed.), page 1511, sec. 904; 18 C.J. 792; Caldwell v. Willis, 57 Miss. 575; 1 Jarman on Wills (3 Am. Ed.), chap. 9, sec. 2.
If the devise is void as to part of the class, it is void as to the whole class.
There shall not be, in any case, a distinction between the kindred of the whole and half blood, except that the kindred of the whole blood in equal degree shall be preferred to the kindred of the half blood in the same degree.
Sec. 1382, Hemingway Code of 1927.
The descendants of the brothers and sisters of the whole blood take in exclusion of the brothers and sisters of the half blood.
Scott v. Terry, 37 Miss. 65.
Where there is a good absolute gift and the settlor or testator goes on in an additional clause to modify the gift, and, by modifying it, makes it, in part, too remote, the modification is rejected in toto, and the original gift stands.
Lazard v. Hiller, 145 Miss. 454; Nicholson v. Fields, 111 Miss. 643; Gray on Perpetuities (3 Ed.), sec. 423.
That one thought and said she had only a life estate does not estop her or her assigns to assert her title in fee against any one not hurt by anything she did.
Boyce v. Moseley, 86 S.E. 771, 102 S.C. 361; Meyer v. Meyer, 106 Miss. 638.
One entitled to a remainder in fee on the termination of a life estate created by a will, who accepted an allotment in partition, was not estopped from claiming the title defined by the will.
Trustee of Common School District v. Isaac's Guardian, 115 S.W. 724.
Before an estoppel can be raised, there must be certainty to every intent and the facts alleged to constitute it are not to be taken by argument or inference.
16 Cyc. 748; Roach v. Brannon, 57 Miss. 490; Turnipseed v. Hudson, 50 Miss. 429.
An admission, in order to constitute an estoppel must relate to a matter of fact, and a person will not be estopped by an admission as to the law, or to admissions as to the legal effect of a contract.
16 Cyc. 756.
And if two modes of construction are fairly open, one of which will turn a bequest into an illegal perpetuity, while by following the other it will be valid and operative, the latter mode must be preferred.
28 R.C.L., page 206, sec. 167; Bullard v. Bullard, 132 Miss. 544.
The will will be given that construction, if it may be reasonably done, so as to make it a valid instrument, and this, although the thing that makes it invalid may be the Two Donee Statute, although the purpose of the Statute is to destroy intention, though the intention be ambiguously expressed.
Henry v. Henderson, 101 Miss. 751; Bratton v. Graham, 146 Miss. 246.
Wilson, Kyser, Armstrong Allen, and Julian Wilson, of Memphis, Tennessee, for appellants.
The object of the Two Donee Statute 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.
Henry v. Henderson, 103 Miss. 69; Lazard v. Hiller, 110 So. 855.
If, however, the language of the will is reasonably susceptible of two different constructions, one of which will defeat and the other sustain the provisions, that construction should be adopted which will sustain and uphold the will in all its parts if it can be done consistently with the established rule of law.
Bullard v. Bullard, 132 Miss. 548.
Where a part of a gift violated the rule against perpetuities and a separate part was valid, the valid part will be upheld.
Bratton v. Graham, 111 So. 353.
Where there is a limitation over upon the dying of one without children or issue, without more, and an estate is given such one, the words shall be held to import a death in the lifetime of the testator.
Katzenberger v. Weaver, 110 Tenn. 620.
Though a matter has once been litigated to a final judgment if it is subsequently relitigated and adjudicated, the last judgment controls and determines the rights of the parties. The second judgment cannot be collaterally impeached by showing the first. In another aspect this principle has been applied in connection with the rule that one who fails to plead or prove a former adjudication waives the benefits of it. Where title is adjudicated in different ways in two actions, the judgment in the later one controls.
2 Freeman on Judgments (5 Ed.), sec. 629, page 1328; Tyrell v. Baldwin, 67 Cal. 1; Bank of Montreal v. Griffin's Estate, 190 Ill. App.? 221; Cummens v. Mullins, 183 Ky. 666; Estate of McNeil, 155 Cal. 333, 100 P. 1086; Horse Creek Coal Land Co. v. Olderson, 266 Fed. 477.
A party is not estopped by a pleading in another suit where it was unsworn to and related to a matter of law.
Piggot v. Piggot, 112 Miss. 877; Meyer v. Blakmore, 54 Miss. 570; Co-operative Life Ass'n. v. Leflore, 53 Miss. 1; Carradine v. Carradine, 33 Miss. 688; Tate v. Tate, 126 Tenn. 172, 212; Crump v. Gerock, 40 Miss. 765.
The widow is the first donee of the life estate; Tempe is the second. The brothers and sisters and their descendants are not the heirs of the body of either the widow or Tempe, and, therefore, for the limitation to be good they must all be right heirs of the donor. The whole brothers and sisters were of course right heirs of the donor. If all of the descendants are included and they are not right heirs of the donor, the limitation is void. This provision falls under the condemnation of the Two Donee Statute.
The word "descendants" is not only defined to include all descendants alike.
Caldwell v. Willis, 57 Miss. 55.
A limitation void as to some of the members comprised in a class is void as to the whole class.
Caldwell v. Willis, 57 Miss. 55.
A bequest to one and in case he dies or in the event of his death, without other words of contingency, then over, the contingency is that of death before the testator dies.
Sims v. Conger, 39 Miss. 231.
In the absence of all expressions showing a different intention the words of limitation must be taken to refer to the time of the death of the testator.
Sims v. Conger, 39 Miss. 231; Nations v. C. U.S. Mortgage Company, 115 Miss. 741, 76 So. 642; 115 Tenn. 747, 748.
The words "without issue of their bodies" would have imported an indefinite failure of issue, and they would have taken at common law only a fee tail by the conveyance, and the effect of the statute, providing that the words "without issue of the body" in clauses like this shall be held and interpreted as a limitation to take effect when such person shall die without issue of the body living at the time of his death, etc., is to prevent the estate conveyed from becoming a fee tail.
Middlesex v. Field, 84 Miss. 646.
A limitation on death without issue is held to mean death during the life of the testator where the gift was immediate and at the termination of the life estate if the possession was deferred.
Frank v. Frank, 120 Tenn. 576.
This devise is to a class, the members of which must be determined according to the law of the domicile of the testator, and not by the law of Mississippi, although the land devised is situated therein, for the rule is that where the laws of different jurisdictions are involved in the interpretation of a will for the purpose of ascertaining the testator's intention as therein expressed, the words used by him therein, in the absence of circumstances indicating that he had the law of another jurisdiction in mind, must be interpreted in accordance with the law of his domicile.
Rambo v. Rose, 120 Miss. 305; Adams v. Farley, 18 So. 390.
As an original proposition the will would doubtless mean that if Tempe Swope died during her mother's lifetime and before the period of distribution arrived, without issue, then the property went to the brothers and sisters.
Reynolds v. Reynolds, 95 So. 181.
Another class of cases is, where, by the terms of the will, the gift to the legatee is not immediate, but in remainder, or preceded by a life or other partial interest, with an executory limitation over "in case of the death of the legatee," or like words. In such cases, the words of contingency will be applied to the period when the remainder takes effect in possession, viz., the determination of the preceding interest, and not to the death of the testator.
Sims v. Conger, 39 Miss. 231 and 311; Nations v. C. U.S. Mortgage Company, 115 Miss. 748.
Holmes Bowdre, of Hernando, Wilson Kyser and Armstrong Allen, all of Memphis, Tennessee, for appellants.
A gift to a number of persons not individually named, but all answering a general description, is a gift to them as a class.
Branton v. Buckley, 99 Miss. 116.
It thus appearing that the limitations is void as to some of the persons comprised in the class to which it is made, it results, by a well settled rule, that it is void as to the whole class. The courts will not undertake to separate the interests of those who might take from those who cannot, for the manifest reason that no such attempt could be successful until the period should come when it would be certainly known that no other person could come into existence who would be entitled to take under the will.
Caldwell v. Willis, 57 Miss. 555.
And when there is a good absolute gift, and the settlor or testator goes on, in an additional clause, to modify the gift, and, by modifying it, makes it, in part, too remote, the modification is rejected in toto, and the original gift stands.
Lazard v. Hiller, 145 Miss. 446; Reddoch v. Williams, 129 Miss. 706; Bratton v. Graham, 146 Miss. 246.
Julian C. Wilson, of Memphis, Tennessee, for appellants.
The expression "my own right heir" or "right heirs" means, according to the law of England, the heir or heirs of the testator at common law.
Re Garland, 47 L.J. Ch. 714.
It can make no difference if, instead of "my heir" the words used had been, "my right heir" or "my right heirs." Each of these phrases indicates the same person, i.e. the common law heir.
Owens v. Gibbons, 1 Ch. 646.
A bequest to trustees, to pay the income for life to legatees named, and at their death "to my right heirs" is payable to the heirs at law living at the time of the death of the testator; the phrase "my right heirs" meaning the testator's heirs at common law, and the words having been used properly as words of purchase.
7 Words Phrases, 6225.
"Right heirs" is a term formerly used in the creation of estates tail to distinguish the preferred to whom the estate was limited from the heirs in general, to whom upon the failure of the preferred line the remainder over was limited. With the abolition of estates tail the term has fallen into disuse. If no preference was made among the heirs, it would not import any, and therefore it here means the same as the single word "heirs."
Brown v. Wadsworth, 61 N.E. 250, 253.
The terms "lawful heirs" "right heirs" and "heirs at law" are synonymous; their signification is fixed by law; and when they are used in deed or will without any superadded words or phrases, indicating a different meaning they are always understood to be used according to their legal acceptation.
Harris v. McLaran, 30 Miss. 533, 572; Peabody v. Cook, 201 Mass. 218, 87 N.E. 466, 16 Ann. Cas. 296; Fletcher v. Fletcher, 88 Ind. 418, 421; 4 Words and Phrases, 388; 6 Words and Phrases, 849; 16 Ann. Cas. 298, 299.
The expression "right heirs of his children" means children of his children. So that grandchildren alive at the death of the testator took title to the estate in remainder.
Ballentine v. Wood, 9 A. 582.
It is the general rule that a bequest or devise to the heir or heirs at law of a testator is to be construed as referring to those who are such at the time of the death of the testator, unless a different intent is plainly manifest by the will.
That rule is founded on the natural meaning of the words, speaking in the popular sense as well as in the strictly accurate sense, "heirs" means those persons who inherit the property of a person at the time of his death.
State Street Trust Co. v. Sampson, 228 Mass. 411, 117 N.E. 832.
A remainder limited by a testator to his heirs-at-law was vested and not contingent; those who were alive at the death of the testator took the estate and not those only who survived the tenant for life.
McDaniel v. Allen, 64 Miss. 417, 7 So. 358.
Where a testator devised a life estate to his wife and the remainder to his children, and provided that the children of such of his children as should die during the estate of the life tenant should take an equal share in the remainder, then the grandchildren of the testator whose parents died during the estate of the life tenant took as purchasers under the will and not by descent.
Dunlap v. Fant, 74 Miss. 566, 17 So. 824.
The ascertainment of who were the heirs of the donor must be referred to the time of his death, and not to the time of the death of the life tenant.
Alexander v. Richardson, 106 Miss. 517, 64 So. 217.
Unless it clearly appears otherwise from the plain language of the will, the class of persons described as testator's "heirs" "heirs at law," "lawful heirs" will be deemed to be those living at the death of the testator and not at some subsequent period.
Schlater v. Lee, 117 Miss. 701, 78 So. 700; McArthur v. Scott, 133 U.S. 340, 378, 5 Sup. Ct. 625, 28 L.Ed. 1015; Coolidge v. Long, 282 U.S. 582, 597; Walker v. Durshee, Kenyon, Petitioner, 17 R.I. 149, 20 A. 294; Ann. Cas. 1917A. 859.
The "right heirs" of a testator, donor, or grantor are in reality those who would inherit at the date of his death.
Magee v. Morehead, 123 So. 881; McArthur v. Scott, 113 U.S. 340, 378, 5 Sup. Ct. 625, 28 L.Ed. 1015; Coolidge v. Long, 282 U.S. 582, 597; Walker v. Durshee, Kenyon, Petitioner, 17 R.I. 149, 20 A. 294; Ann. Cas. 1917A. 859. Holmes Bowdre, of Hernando, and Julian C. Wilson, of Memphis, Tennessee, for appellants.
The weight of modern authority is that "die without issue" without anything further in the will to indicate the intention of the testator and when inserted in order to provide for a gift to another in the event of dying without issue, means death in the lifetime of the testator. The rule, itself, grows out of the principle that the law favors absolute rather than conditional estates. Testator's intention is at best doubtful in such cases; and the law accordingly settles such doubt by construing the will as creating an absolute estate with a substitution of the beneficiary in case the first named beneficiary dies before the testator.
Page on Wills, sec. 1140.
Death without issue is to be construed, if fairly possible, as meaning death before the period of distribution. Page on Wills, sec. 1140.
Even where the express language of will does not fix the time before which the death is to occur in order to defeat the estate as subsequent to his own the context of the will may show that such was the intention. One of the commonest forms by which the context shows such an intention is where the testator creates a particular estate to one and the remainder to another, provided that on the death of such other generally without issue the estate shall go to a third beneficiary. Under such devise the testator contemplates death of the first remainderman subsequent to his own and usually before the termination of the particular estate or at the expiration of the period of time.
Page on Wills, sec. 1142.
Courts do not look with favor on indefinite failure of issue and are inclined to limit the devise over in case the remainderman die without issue to a period before distribution and usually the gift over in case of death during the life of the testator, but where the gift is the remainder, then the time of death refers to death occurring before the termination of the particular estate.
Schouler on Wills, sec. 1053.
Where the gift is to take effect in possession immediately upon the testator's decease, words of survivorship are regarded as intended to provide against the death of the objects of the gift in the lifetime of the testator, and prima facie refer to his death. Early English cases extended the rule to cases in which the gift was postponed to a prior life estate, or other particular interest carved out. The later English cases abandoned this position and adopted the rule that whether the gift be immediate or postponed, and whether the property be real or personal, words of survivorship prima facie refer to the period of division. If there is no previous interest given, the period of division is the death of the testator and survivors at his death take the whole, but if a previous life estate be given, then the period of division is the death of the life tenant and survivors at such death take the whole.
Burleson v. Mays, 66 So. 36, 40; Smith v. Smith, 139 Ala. 413, 36 So. 616; Reynolds v. Reynolds, 95 So. 180.
Words of survivorship in a will, unless there is a manifest intent to the contrary, always relate to the death of the testator.
Spira v. Frenkel, 97 So. 104.
Charles Strong, of Macon, and Magruder, Walker Magruder, of Starkville, for appellees.
At common law the words, "without issue of her body" would have imported a definite failure of issue and Tempe P. Swope would have taken at common law only a fee tail by the will, and the effect of Article 8 of section 2 of chapter 36 of the Code of Mississippi of 1857, that the words "without issue of the body" in clauses like this shall be held and interpreted as a limitation to take effect when such person shall die without issue of the body, living at the time of his death, etc., is to prevent the estate conveyed to Tempe P. Swope from becoming a fee-tail.
The limitation to the brothers and sisters, or their descendants, of the testator, Jacob K. Swope, is a conditional limitation over after the death of Tempe P. Swope, without issue of her body. Such conditional limitation does not cut down the estate in fee, it takes effect only at the termination of the prior estate and neither extends the prior estate nor accelerates its termination.
Brattle Square Church v. Grant, 3 Gray. 142, 63 Am. Dec. 725; Banking Company v. Field, 84 Miss. 646-657.
Tempe P. Swope took an estate in fee determinable upon the contingency of her dying without issue at the time of her death.
Banking Company v. Field, 84 Miss. 646-657.
The determination of the testator's intention, or, in other words, the construction of his will, is controlled by the conditions and circumstances surrounding him and attendant upon the execution thereof, any application of the general rules as to the period of survivorship being denied effect, for the reason that the language of the will demonstrates conclusively that the gift over was to become effective upon the death of the donee in the course of nature. Any other result would have done violence to the testator's manifest purpose.
Abrahams v. Abrahams, 122 So. 625; Castleberry v. Stringer, 176 Ala. 250, 50 So. 849; Rutland v. Emanuel, 202 Ala. 269, 80 So. 107; Dickson v. Dickson, 178 Ala. 117, 59 So. 58; Smith v. Smith, 157 Ala. 79, 47 So. 290, 25 L.R.A. (N.S.) 1045.
The testator's intention if legal must be gathered from the whole will and all of its parts after taking due consideration of the testator's manifest scheme to ascertain its spirit rather than its letter, and, if possible, to make it form one consistent whole and there the general and primary interest prevails over a special or secondary interest.
Fowlkes v. Clay, 88 So. 651.
The general rule must be enforced, "unless it appear from the will and the surrounding circumstances" that it was the intention of testatrix that the gift should take effect upon the death of the beneficiary at any time in the course of nature.
40 Cyc. 1499 et seq.
The comprehensive and all dominating rule for the construction of wills is that the testator's intention must be ascertained and given effect if legal in the light of all attendant facts and circumstances, to which vital consideration technical rules must be subordinate.
Ball v. Phelan, 94 Miss. 293; Watson v. Blackford, 50 Miss. 15; Chrisman v. Bryant, 108 Miss. 318; Henry v. Henderson, 103 Miss. 49; Countiss v. King, 115 So. 109; Beck v. Booth, 144 Miss. 493; Smith v. Smith, 47 So. 220, 25 L.R.A. (N.S.) 1045; Lumpkin v. Lumpkin, 25 L.R.A. (N.S.) 1063.
Such circumstances control the construction of his will and fix the period of survivorship in contravention of the general rule.
King v. King, 215 Ill. 100; Jordan v. Hinkle, 111 Iowa 43; Willitts v. Conklin, 33 L.R.A. (N.S.) 321.
The word "descendants" does not refer, as used in the will at issue, to the children or offspring of living parents, but only to the children or offspring of dead parents.
Section 7365, Alabama Code of 1923, was brought forward to its present position in such Code through six preceding Codes, including the Code of 1857, which was in effect on the 3rd day of July, 1871.
Articles 110, 113 of section XIV, Revised Code of Mississippi, 1857.
The term "descendants" according to its lexicographical and legal meaning, designates the issue of a deceased person and does not describe the children of a parent who is still living.
18 Corpus Juris, page 792; 3 Words and Phrases, page 2016; Shannon v. Riley, 121 So. 808.
The use of the word "descendants" in a will, of course, includes any issue of a dead parent next in line of descent, children, grandchildren, or great-grandchildren.
Ridley v. McPherson, 110 Tenn. 402, 43 S.W. 772; Nichols v. Guthrie, 199 Tenn. 535, 73 S.W. 107; Lea v. Lea, 145 Tenn. 693; Dunlap v. Fant, 74 Miss. 197; Harvey v. Johnson, 111 Miss. 566; Butler v. Chase, 150 A. 121; In re Stevens Estate, 222 N.Y.S. 714; In re Beach's Estate, 151 A. 654.
Where a will conveyed to testator's wife a life estate, and "at the decease of my said wife my estate shall be equally divided among my surviving children, or their heirs share and share alike, the testator meant that the distribution was to be among those children who survived and the "heirs" of any child who might have died, per stirpes.
Shannon v. Shannon, 139 A. 173.
A devise to children for life, and "upon the death of all my said children then to their respective heirs forever," indicates a clear intention on the part of the testator that the descendants of his children should take substitutionally. This necessarily means that the distribution be made per stirpes.
Sanford v. Stagg, 150 A. 187.
If it is doubtful whether testator intended the distribution among his grandchildren to be per stirpes or per capita, the court should adopt a construction in favor of the former not only as being most probably in accordance with his intention, but also as being in accordance with the policy of our law.
Stoutenburg v. Moore, 37 N.J. Eq. 63; Bartine v. Davis, 46 A. 577, 60 N.J.E. 202; 2 Jarman on Wills, sec. 195.
Only those took as issue who would have been entitled to take as heirs of the body under the statute of distribution. Issues of the body of Lucy A. Keller living at her death means heirs of her body living at the time of her death.
Dixon v. Pendleton, 72 S.E. 501; Rembert v. Catoes, 89 S.C. 198, 71 S.E. 959.
Kindred of the whole blood and half blood take as heir without distinction from a deceased intestate except for a preference to the kindred of the whole blood in equal degree.
Article 110, sec. XIV, Mississippi Code of 1857.
The lives of two donees in being, the measure of time within which the ultimate fee must vest, is a formula for conveyancing.
Cannon v. Barry, 59 Miss. 302; Busby v. Rhodes, 58 Miss. 240; Halsey v. Gee, 79 Miss. 193.
The right heirs of the donor took by purchase and not by descent, as limitees under the will but not as heirs.
Cannon v. Barry, 59 Miss. 302.
Jacob K. Swoope did not in legal effect devise to his wife an undivided one-third interest for life in the lands at issue in this case. She took same as a matter of legal right under the statutes of this state at that time, almost identical with the Alabama statute, as her dower to such undivided one-third interest the daughter, Tempe, was in legal effect the first donee, and that testator's brothers and sister or their descendants in the alternative were as a class, the second donees thereof.
Henry v. Henderson, 101 Miss. 761.
Even if doubt should arise as to the devise of the undivided one-third interest subject to the widow's life estate, the will as a testamentary declaration would be void only to the extent of its illegality.
Cheairs v. Smith, 37 Miss. 646.
That a devise in a will is void for the reason that it suspends the power of alienation for three lives in being does not invalidate other devises in the will.
Woodruff v. Cook, 47 Barb. 304.
The evident intention of the testator as to one legacy will not be defeated simply because of the failure of another legacy to vest.
While the purpose of construing wills is to ascertain from the entire instrument the intention of the testator, yet such parts of will as show an intention contrary to established rules of law or public policy will be held void and remainder given effect.
Kerr v. Dougherty, 59 How. Prac. 44; Davis v. Hutchinson, 282 Ill. 523, 118 N.E. 721; Monterre v. Welling, 78 A. 507; Ann. Cas. 1912C 1311; Eaton v. Eaton, 88 Conn. 269, 81 A. 191; Little v. Bowman, 114 N.E. 519; Mockbee v. Grooms, 254 S.W. 170; Hooper v. Wood, 625 S.E. 350.
A decree is a final adjudication of what was pleaded, or might properly have been pleaded, in the bill in that case.
Weatherly v. Pearl River Lumber Company, 8 Miss. 535.
It is not generally deemed essential that all the parties to both proceedings be identical, and a judgment is conclusive of the issues involved in a controversy between the parties and those standing in privity with them, although in the action in which it is pleaded some only of the parties are litigants, or because in the subsequent action others are joined as defendants.
15 R.C.L., page 1012.
The rule that a party will not be allowed to maintain inconsistent positions in judicial proceedings is based on manifest justice.
10 R.C.L., page 698.
As a general rule, a party is estopped from taking a position which is inconsistent with one previously assumed in the courts in the same action.
10 R.C.L., page 699.
The right is not given a litigant to assume any position inconsistent with his attitude in a former case to the prejudice of his adversary.
Snouffer v. City of Tipton, Ann. Cas. 1912d 414; Garden City v. Bank, 93 A.S.R. 284.
Under the title, "judgments" a concise and comprehensive analysis of the principles involved in the instant cause is found.
15 Ruling Case Law, secs. 311, 314, 334, 335, 436, 450, 503 and 513; Shirley v. Fearne, 33 Miss. 653, 69 Am. Dec. 375; Fisher v. Browning, 107 Miss. 729, 66 So. 132; Ann. Cas. 1917C 466; Mayer v. McCracken, 245 Ill. App. 551; 92 N.E. 355; Jeter v. Hewitt, 16 L.Ed. 345; Dean v. Board of Supervisors, 135 Miss. 268.
The words brothers and sisters usually include brothers and sisters of the half blood.
40 Cyc. 1453; 1 Words and Phrases, page 884; 29 L.R.A. 541, note; Cox v. Clark, 9 So. 457.
A gift to brothers and sisters extends to half brothers and sisters.
2 Jarman on Wills, page 165.
The use of the plural "brothers" would have been inapt if testator meant only his one brother of the whole blood.
Fuller v. Martin, 96 Ky. 500, 29 S.W. 315; Lusby v. Cobb, 32 So. 6; Huntress v. Place, 137 Mass. 409.
The testator is presumed to have in mind the laws of his domicile in his use of technical words of legal import.
Rose v. Rambo, 82 So. 149.
If a legacy is given to a class of persons dependent on an uncertain event, that class is to be ascertained at the time of its happening if it ever happens, and the entire interest vests in such persons as at that time fall within the description of persons constituting that class.
Zant v. Morris, 25 Ala. 285; Travis v. Morris, 28 Ala. 494; Insurance Company v. Webb, 54 Ala. 688.
A devise to the testator's wife with remainder to any child or children she might have, or in case she die without issue, to the heirs at law of the testator, vests upon the death of the wife, without issue, in the heirs living at her death, and not in those living at the death of the testator.
28 R.C.L., Wills, sec. 238; Schapiro v. Howard, 113 Md. 360; 140 A.S.R. 414; Barkley v. Gibbs, 233 S.W. 134; New York Life Ins. Trust Co. v. Winthrop, 237 N.Y. 93, 31 A.L.R. 791.
Where the devise to the class vests immediately upon the death of the testator, it is attended by all the incidents of a vested estate, and consequently the shares of all members of the class in existence at that time, but dying before the period fixed for the ascertainment of the members thereof, do not lapse, but devolve upon their appropriate representatives.
2 Jarman on Wills (6 Ed.), 1667, 1668; 24 Am. Eng. Ency. of Law (2 Ed.), 382-3; 73 American State Reports 405; 37 Miss. 39.
The term "right heirs" cannot and will not be construed to mean "lineal descendants" only.
Middlesex Banking Company v. Field, 84 Miss. 646.
Where an election is once made by the party bound to elect, either expressly or inferred from his conduct, it binds not only himself but also those parties who claim under him his representatives and heirs.
1 Pomeroy's Equity Jurisprudence (4 Ed.), sec. 516.
Logan Barbee, for appellees.
In construing this will it is the duty of the court to ascertain the controlling intention of the testator and to enforce such intention, provided it is lawful, and it is the duty of the court to so construe the will if possible, as to make the instrument valid. The intention of the testator is to be ascertained from the whole will and from a consideration of all the provisions of the instrument taken together, and, if the language of the will is clear, definite and unambiguous, the court must gave the language its clear import. If, however, the language of the will is susceptible of two different constructions, one of which will defeat and the other sustain the provisions, that construction should be adopted which will sustain and uphold the will in all its parts, if it can be done consistently with the established rule of law.
Bullard v. Bullard, 97 So. 1.
The rule that a will shall if possible be so construed as to avoid partial intestacy, although anciently based in part on the obsolete doctrine that property not disposed of went to the executor, rests now, as formerly, on the ground that where the testator substitutes his will for the law he intends to embrace all his estate.
M.J. Vaiden v. R.R. Hawkins, Extr., 59 Miss. 406; 40 Cyc. 1409; 28 R.C.L. 277, sec. 189; L.R.A. 1915C 1023.
Where the words of a will are capable of two-fold construction, the one lawful and valid, and the other unlawful or invalid, the rule is, even in the case of a deed, much more in the case of a will, to adopt that construction which will make the instrument good and operative. Such words will receive that construction which is most consistent with the testator's intention ascertained from the whole will.
Sizer's Pritchard Law of Wills (2 Ed.), page 2118, sec. 396; Pruden v. Pruden, 14 Ohio State Rep. 251.
In construing the will the court should take into consideration the circumstances surrounding the execution thereof and the condition of the testator and beneficiaries.
Fowlkes v. Clay, 88 So. 651.
The rule is well established in this state that "words of survivorship in a will, unless there is a manifest intent to the contrary, always relate to the death of the testator. But in the instant case there is manifest intent to the contrary. The circumstances surrounding the execution of the will, proper to be considered in connection with the language used, make it too clear for discussion that the gift over was to take effect upon the death of the donee, and that the general rule as to words of survivorship relating to the death of the testator can have no application without doing violence to the testator's manifest intent to the contrary.
Abrahams v. Abrahams, 122 So. 625.
Where, in a will, a testator has used certain technical terms which terms have acquired, in the domicile of the testator, a fixed and unchangeable meaning, thus becoming a rule of property, these terms in such will, in whatever the state the will is up for construction, shall be given, in the interpretation of the will, the meaning that would be given them by the courts of his domicile.
Ball v. Phelan, 49 So. 956.
The will contains no clause showing that the words of limitation were not used by the testator in their established legal sense, and therefore they must be understood in that sense. By force of our statute the words, "dying without issue," mean "limitation to take effect when such person shall die, not having such heir, issue, etc., living at the time of his death, or born to him within ten months thereafter. In the absence of all expressions showing a different intention the words of limitation must be taken to refer to the time of the death of the testator.
Sims v. Conger, 39 Miss. 231, 312.
Testator gave his wife a life estate in one-third of the land in controversy and upon her death to Tempe, that is to say, until his wife's death Tempe had no vested interest in this one-third. He then gave to his daughter, Tempe, a base or determinable fee in two-thirds of this same land on condition that if she should die without issue it should go to his whole brother and sister or their descendants, and when the widow of the testator died Tempe, and not before, became vested with a base or determinable fee in this one-third interest on the same conditions that she received the two-thirds interest, and the will violates no law of the land and must stand.
Middlesex Banking Company v. Field et al., 37 So. 139.
The doctrine of election rests upon the principle that he who seeks equity must do it, and means as the term is ordinarily used, that, where two inconsistent or alternative rights or claims are presented to the choice of a party by a person who manifests the clear intention that he should not enjoy both, then he must accept or reject one or the other, and so, in other words, that one cannot take a benefit under an instrument, and then repudiate it.
Barrier v. Kelly, 33 So. 974.
Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded both at law and in equity, from asserting rights which might perhaps have otherwise existed, either of property, or contract, or of remedy as against another person, who has in good faith relied upon such conduct, and has been led thereby to change his position for the worse, and who on his part acquires some corresponding right either of property, of conduct or of remedy.
2 Pomeroy's Equity Jurisprudence (4 Ed.), 1642, sec. 804.
The principal on which the doctrine of estoppel by conduct rests is that it would be a fraud in a party to assert what his previous conduct had denied, when on the faith of that denial others have acted. When silence becomes a fraud, it will operate as an estoppel. Estoppel by conduct "arises from an act or declaration of a person intended or calculated to mislead another, on which that other has relied, and has so acted, or refrained from action, as that injury will befall him if the truth of the act or declaration be denied.
Staton v. Bryant, 55 Miss. 261.
If a person by his conduct induces another to believe in the existence of a particular state of facts, and the other acts thereon to his prejudice, the former is estopped as against the latter, to deny that that state of facts does in truth exist.
16 Cyc. 680.
Irvin A. Clement, and L.E. Farley, of Memphis, Tennessee, for appellees.
A devise to a class contemplates the determination of the members of the class either at the time of the death of the testator, from which the will speaks or from some later time, usually when the estate devised is to vest in enjoyment. Hence where there is such a devise it does not include a person dead at the date of the execution of the will, who had he survived the testator would have fallen within the description of the class.
28 Ruling Case Law, sec. 241; 17 Alexander, Commentaries on Wills, p. 1284, sec. 876; Re Estate of Hutton, 180 P. 882, 3 A.L.R. 1673, 1682; Davis v. Wynn, 80 Ga. 673, 6 S.E. 183; Nicholson v. Nicholson, 115 Ia. 493, 88 N.W. 1064; Pimel v. Benjamin, 183 N.Y. 194, 76 N.E. 157; 2 L.R.A. (N.S.) 580, 5 Ann. Cas. 239; Wescott et al. v. Higgins et al., 58 N.Y.S. 938; White v. Mass. Inst. of Technology, 50 N.E. 512; Parish v. Walton, 190 N.E. 947.
Where words are susceptible of two reasonable interpretations one of which will defeat or destroy the will or a part thereof, as by erecting an illegal perpetuity, and the other will result in the upholding of the will or a part thereof, the latter construction is to be preferred, and in such case such construction will yield to obvious compulsion only.
The testator is presumed to know the limitations placed on his power of disposition, and to intend to comply therewith.
28 R.C.L., Wills, sec. 167; 11 Schouler on Wills (6 Ed.), 64; Page on Wills, sec. 814, page 1381; 30 Cyc. subtitle Wills, page 667; Seitx v. Faversham, 98 N.E. 385; Beardsley v. Johnson, 134 A. 530; Colt v. Industrial Trust Co., 146 A. 628; Clossett v. Burtschaelle, 230 P. 554; Empson v. Empson, 204 N.Y.S. 1, 123 Misc. Rep. 1; In re Gallien, 247 N.Y. 195, 160 N.E. 8; In re Shapiro's Estate, 236 N.Y.S. 280; Farman v. Farman, 77 A. 70; In re Heywood's Estate, 82 P. 755; Estate v. Dunphy, 81 P. 315; Gray v. Whittemore, 193 Mass. 367, 78 N.E. 422; 10 L.R.A. (N.S.) 1143; 116 Am. Rep. 246; Henry v. Henderson, 101 Miss. 751, 58 So. 354; Bratton v. Bratton, 118 So. 353; Bullard v. Bullard, 132 Miss. 544, 97 So. 1; Castleberry v. Stringer, 176 Ala. 250, 57 So. 849.
A judgment of a court of competent jurisdiction is binding on those who were parties to it, not only with reference to the immediate subject-matter thereof, but also as to all matters litigated and determined therein, and especially as to matters which had necessarily to be determined in order to reach the conclusion embodied in the judgment. And the fact that such judgment was predicated on an erroneous idea of the law, and that the decision of the court was wrong as a matter of law does not affect its character as res adjudicata. More especially is this true, even though the judgment be void where it was obtained at the instance of the party now attacking it, and where such party has accepted the benefits awarded thereunder.
15 Ruling Case Law, sec. 311; Shirley v. Fearne, 33 Miss. 653, 668; Mayer v. McCracken, 245 Ill. 551, 92 N.E. 355; Fisher v. Browning, 107 Miss. 729, 66 So. 132; Ann. Cas. 1917C 466; Jeter v. Hewitt, 22 How. 352, 16 L.Ed. 345; Dean v. Board of Supervisors, 135 Miss. 268, 99 So. 563.
Rules of testamentary interpretation with a view to the discovery of intention can never transcend this limit; this intention so determined must be justified by the law and the language of the will. Rules favoring the early vesting of remainders and referring words of survivorship to the death of the testator can never be used to wrest language from its plain meaning, for as respects these things, testators are free to do as they please with their property.
Bingham v. Sumner, 206 Ala. 266, 89 So. 479.
In cases of that character it is held in the absence of something in the will evidencing a contrary intent that the words "dying without issue" create a defeasible fee, which will be defeated by the death of the devisee at any time without issue then living.
Baker v. Thomas, 189 S.W. 215.
A defeasible fee is created when the devise is to one with a proviso that it shall be defeated on the happening of a named continency, as where the devise is to A, and if he should die without issue, then to B. In such a case A takes a fee subject to be defeated by his death without issue.
Parepoint v. Parepoint's Adm'r, 15 S.W.2d 513.
If however there is a devise to one of a fee determinable upon his death under circumstances which are in fact contingent, such as death without issue, the testator is held to have contemplated a death which might occur before or after his decease and the will is not construed as providing for a death occuring in the lifetime of the testator.
Tutwiler v. McClure, 120 N.E. 458; Risser v. Ayers, 306 Ill. 293, 137 N.E. 851; Davis v. Scharf, 133 A. 197; Micheal v. Minchin, 101 A. 283.
In a number of cases death without issue has been held to refer to death after that of testator. Many of these cases assume that this is the prima facie meaning of such a phrase. Page on Wills, sec. 1141; Britton v. Thornton, 112 U.S. 526, 27 L.R.A. (N.S.) 1047; Davis v. Scharf, 133 A. 197; Farrar v. Pemberton, 152 S.E. 339.
If some of the class are dead and their descendants take by substitution a per capita distribution between the original members and the groups of representatives of deceased members is indicated, together with a per stirpes distribution of the share of each separate group as between the members thereof then the heirs or issue of the deceased member will take only the share which their deceased parent would have taken.
2 Page on Wills, sec. 944.
A judgment rendered by a court having jurisdiction of the parties and subject matter, whether correct or not, is conclusive and indisputable evidence as to all rights, questions or facts put in issue in the suit and actually adjudicated therein when the same come again into controversy between the same parties or their privies upon the same or a different cause of action.
34 Corpus Juris, page 902, sec. 1312; Redmond v. Hubbard, 140 Ky. 71, 130 S.W. 955, 37 L.R.A. (N.S.) 728; State v. Wilson, 107 N.W. 230; Burrell v. Jean, 132 N.E. 704.
There is a distinction to be drawn between matters which are concluded because of a judgment, and those which are concluded because they are res adjudicata. The latter term is much broader than the former, and probably inclusive of it. The judgment is the specific disposition by the court of the immediate subject matter of the lawsuit — the decision of the court upon the cause of action sued on. That decision when on the merits is finally and forever conclusive of that cause of action between the same parties. Res adjudicata includes not only this disposition of the cause of action sued on, but also the holding or finding of the court on all matters specifically pleaded on which issue is joined, or specifically decided by the court, or which whether pleaded or specifically decided or not, were matters necessary to be decided in order to render the judgment.
15 Ruling Case Law, sub-title judgments, sec. 450 and 451; 34 Corpus Juris, secs. 1296, 1311, 1315, 1361, 1331, 1341, 1343, page 874, et seq.; Greene v. Bank, 73 Miss. 542, 19 So. 350.
The general rule is that a judgment or decree is conclusive between parties and privies. There is no difference in this respect whether the final decision was rendered by a court of law or equity. It is conclusive both as to the law and fact in issue. The estoppel precludes parties and privies from contending to the contrary of that point or matter of fact which having once been distinctly put in issue between them or those to whom they are privies in estate or law has been on such issue joined solemnly found against them.
Land v. Kiern, 52 Miss. 341.
The rule is, that, in a second action between the same parties and their privies although the causes of action may be different, the judgment in the first action is res adjudicata in the second as to any point or question actually litigated and determined in the first.
Von Zondt v. Braxton, 115 So. 557; 34 C.J. 868; Y. M.V.R.R. Co. v. Sibley, 111 Miss. 21, 71 So. 167; Miller v. Buckely, 85 Miss. 706, 38 So. 99.
A fact or question which was actually and directly in issue in a former suit and was there judicially passed upon and determined by a domestic court of competent jurisdiction, is conclusively settled by the judgment there in so far as concerns the parties to that action and persons in privity with them and cannot be again litigated in any future action between such parties and privies in the same court or in any other court of concurrent jurisdiction upon the same or a different cause of action.
Harvison v. Turner, 116 Miss. 550.
In determining whether a question is res adjudicata the following principles of law should be kept in mind; that a judgment is presumed to be correct where there is any possible state of facts to justify it. And that where a court has jurisdiction of the subject matter and the parties in interest its judgment is not alone res adjudicata of the question actually presented by the pleadings but is also res adjudicata of all questions necessarily involved and which could have been presented.
Bates v. Strickland, 139 Miss. 636.
As to the proposition that Darrow v. Swoope involved only a part of the land devised by testator's will, the finality of the adjudication still holds.
Davis v. Hart, 66 Miss. 642, 6 So. 318.
Under the principles of res adjudicata all the questions involved in a cause and necessarily decided are concluded as between parties and privies except insofar as the judgment may have been beyond the power of the court.
Dean v. Board of Supervisors, 135 Miss. 268, 99 So. 563.
Res judicata renders white that which is black and straight, that which is crooked.
Jeter v. Hewitt, 22 How. 352, 16 L.Ed. 345.
The judgment is conclusive of the title of the parties against whom it is rendered, whenever the title has been the subject matter of the suit and has been adjudicated.
Shirley v. Fearne, 33 Miss. 653; Smith v. Smith, 200 S.W. 643.
A judgment settled and entered in whole or in part by the agreement, consent or compromise of the parties is not less effective as a bar or estoppel than one rendered upon contest and trial.
34 Corpus Juris, sec. 1198, page 779; Blackbourn v. Senatobia, etc. Ass'n, 74 Miss. 852.
According to all the authorities the weight of modern judicial opinion is that the term "right heirs" is simply equivalent to "heirs."
The object of the Two Donee Statute is to establish a limit beyond which the grantor may not go, but within which he may exercise unbounded discretion, so that he may limit the remainder to the first born or to the last born, or to the married or single, or to the adult or minor heirs of the life tenant, taking care always that the fee shall vest within the period prescribed by the rule against perpetuities.
Cannon v. Barry, 59 Miss. 289.
The statute prescribes a limit of time, and not a formula of conveyance.
Banking Company v. Field, 84 Miss. 646.
In case of a devise to a class of persons, in the absence of a contrary intent, the members of such class who will take are to be determined at the period of distribution.
Branton v. Buckley, 99 Miss. 116, 54 So. 850; L.R.A. 1917C 527.
The words "heirs," "next of kin," "nearest relations," etc. have been given a meaning entirely at variance with their strict technical signification.
13 A.L.R. 47; 20 A.L.R. 351; 30 A.L.R. 915; 49 A.L.R. 174; 61 A.L.R. 1005.
Where a testator uses the word "heirs" as applied to the descendants of a living person the general rule of construction is that he intends the children of such person.
Heath v. Hewitt, 127 N.Y. 166, 27 N.E. 959, 13 A.L.R. 46.
Where the will recognizes the ancestor as living and makes a devise to his heir eo nomine this shows that the term was not used in its strictest sense, but as meaning the heir apparent of the ancestor named.
Hared v. Horton, 1 Denio. 165.
It has been determined in many cases that the word "heirs" notwithstanding its primary and well understood meaning is susceptible of more than one interpretation.
Vannorsdall v. Van Deventer, 51 Barb. 137; Matter v. Gilman, 85 Misc. 651, 148 N.Y.S. 1047; Bailey v. Bailey, 25 Mich. 185.
A devise to the heirs of one who is stated in the will to be living is a valid disposition in favor of those who would be his heirs if he should then die.
Wallace v. Diehl, 95 N.E. 646, 33 L.R.A. (N.S.) 9.
In several cases indications have been held sufficiently clear to show that the testator meant the class to be ascertained at the death of a life-tenant or of a primary devisee.
Wood v. Bullard, 151 Mass. 324; 7 L.R.A. 304, 25 N.E. 67; Welch v. Brimmer, 169 Mass. 204, 47 N.E. 699; Re Bowers, 109 App. Div. 566, 96 N.Y.S. 562, 184 N.Y. 574, 77 N.E. 1182; In Re McFee, W.N. 186, 79 L.J. Ch. (N.S.) 676, 103 L.T. (N.S.) 210; McKee's Estate, 198 Pa. 255, 47 A. 993; Forrest v. Porch, 100 Tenn. 391, 45 S.W. 676.
There are many cases where the primary devisee was testator's sole heir at law, and there was a limitation over after his death to a class such as "heirs" or "next of kin" etc., holding that in such case the "heir at law" was excluded, and the ultimate devisees determined as of the time of the taking effect of the limitation over.
Marsh v. March, 1 Bro. Ch. 293; Jones v. Colbeck, 8 Ves. Jr. 38; 6 Rev. Rep. 207; Miller v. Eaton, C. Cooper 272; 14 Rev. Rep. 259; Butler v. Bushnell, 3 M.Y.L. K. 232; Clayton v. Bulwer, 5 Myl. W. 108; Lees v. Massey, 3 De G.F. J. 113; In re Greenwood, 31 L.J. Ch. (N.S.) 119; Beers v. Grant, 110 App. Div. 152, 97 N.Y.S. 117, 185 N.Y. 533, 77 N.E. 1181; Bostch Safe Dep. Tr. Co. v. Blanchard, 196 Mass. 35, 81 N.E. 654; Hardy v. Gage, 66 N.H. 552, 22 A. 557; Doe ex dem King v. Frost, 3 Ban. and Ald. 546; Salter v. Drowne, 141 App. Div. 352, 126 N YS. 686; Delaney v. McCormick, 88 N.Y. 174; Baker v. Crawford, 85 S.C. 54, 67 S.E. 7; Gourdin v. Shrewsbury, 11 S.C. 1; Walker v. Dunshee, 38 Pa. 430; Tatham's Estate, 250 Pa. 269, 75 A. 520, Ann. Cas. 1917A 855; Henkins v. Henkins, 287 Ill. 62, 122 N.E. 88; Sears v. Russell, 8 Gray 86; Beck v. Booth, 110 So. 204.
If an estate in fee simple is clearly given to a person, a limitation over to another upon such person's death or in case of his death not coupled with any contingency of time or otherwise, would, if regarded as referring to his death after that of testator, be invalid as an attempt to change the fee simple into a life estate. Consequently, in order to give effect to such a limitation it is almost invariably construed as referring to a death before testator, a substitutionary clause, as it is frequently termed, naming a person to take in case the person first named is not in existence to take at the time the will goes into effect.
Tiffany on Real Property (2 Ed.), sec. 166, page 565.
The presumption that "dying without issue" in such case means death during the lifetime of the testator may be overcome by the provisions of the will. The rule that death means death during the lifetime of the testator is only a prima facie rule of construction. The will and the surrounding circumstances may show that testator had fixed some other point of time as that upon which such death or death without issue is to occur in order to divest the estate. Effect will be given to any indication however slight that testator contemplates the death of the beneficiary after his own.
Page on Wills, section 1142.
But when the death of the first taker is coupled with other circumstances which may or may not ever take place, as for instance, death under age, or without children, the devise over unless controlled by other provisions of the will takes effect according to the ordinary and literal meaning of the words upon death under the circumstances indicated at any time whether before or after the death of the testator.
Britton v. Thornton, 112 U.S. 526, 5 S.Ct. 291, 28 L.Ed. 816.
Argued orally by Julian C. Wilson, and Paul Bowdre, for appellants, and by Irwin Clement, and R.F.B. Logan, and L.E. Farley, for appellees of the full blood, and by W.W. Magruder, and Charles Strong, for appellee, of the half blood.
Note: This opinion (See 135 So. 484) published only to give the facts, but is withdrawn officially. See the official opinion immediately following.
Jacob K. Swoope, on the 3d day of July, 1871, executed his last will and testament in a hotel at Memphis, Tennessee, and died the following day. At the time he executed the will, he was very sick with malarial haemaeturia, and had sent for his family. He was a resident of Florence, Alabama, and owned property in Alabama and Mississippi.
The will reads as follows:
"I, Jacob K. Swoope, of the state of Alabama, being now of sound mind do hereby make and ordain this as my last will and testament, hereby revoking all others.
"All my just debts are first to be paid.
"I give to my nephews, Jacob K. Swoope, son of C.C. Swoope, and Jacob Swoope Moore, son of R.E. Moore, to be equally divided between them in absolute right, the proceeds of a policy which there is on my life of ten thousand dollars in the Knickerbocker Life Insurance Company. I give to my daughter, Tempe, an absolute right in a policy on my life for the sum of twenty-five hundred dollars in the Mound City Insurance Co.
"I give to my wife, Elizabeth T. Swoope, one-third of all the balance of my property, both real and personal, wherever situated for the term of her natural life.
"I give to my daughter, Tempe P. Swoope, all the balance of my property, both real and personal, upon the following conditions and limitations, viz.: that should the said Tempe die without issue of her body, the said property is hereby given to my brothers and sisters, or their descendants, the descendants of each brother or sister to take that share which the brother or sister would have taken had he or she been living. Upon the death of my wife, I give and devise to my daughter, Tempe, the portion of property herein given and devised to my wife for the natural life of my wife, and upon the same limitations.
"I do hereby appoint Charles C. Swoope, Richard E. Moore, and James E. Beasely, executors of this my last will and testament and they shall not be required to execute bond for the performance of the trust. I hereby give my gold watch which was my father's to Jacob K. Swoope, the son of C.C. Swoope. I hereby give up and release to my brother, C.C. Swoope, the debt which he owes me, being by three notes and he shall not be required to pay the same.
"Jacob K. Swoope.
"Signed and acknowledge by the said Jacob K. Swoope in our presence who signed the same at his request and in his presence as witnesses and in the presence of each other. July 3, 1871.
"James Phelan, "R.W. Averitt, "D.D. Saunders."
The will was probated in Lauderdale county, Ala., on the 14th day of July, and subsequently in the state of Mississippi. The testator was about thirty-seven years of age at the time of making the will, and his daughter, Tempe, referred to therein, was nine years of age. The testator had one brother of the whole blood, C.C. Swoope, and one sister of the whole blood, Fannie Swoope Moore, two brothers of the half blood, Matthew Clay and J.S. Billups, then living, and a brother of the half blood, Thomas Clay, who had died prior to the making of the testator's will, but who had living children at the time the will was made. The wife of the testator, Mrs. Elizabeth T. Swoope, died in 1890. The daughter, Tempe, married G.M. Darrow, one of the appellants, in 1885, and died in the year 1927 without living issue of her body. All of the brothers of the whole and half blood of the testator, and the sister of the whole blood, died before the daughter of said testator.
In the year 1887 a suit was filed in Lauderdale county, Ala., setting forth that certain property owned by the testator and disposed of by the will was unprofitable, and the building situated on part of the land referred to in the bill was old and in a state of bad repair, and the property was not profitable, and prayed for the sale of the property for reinvestment. The bill also had attached to it a copy of the will, and originally in the bill Tempe Swoope Darrow, the daughter of the testator, claimed to be the owner of a fee-simple title, and prayed for a construction of the will; but an amended alternative prayer was made that, if she were not the owner of the fee-simple estate, the court decree the sale for reinvestment, and fix the rights of the parties to the suit therein. This suit remained in court for some time, and the property was ordered sold for reinvestment, the court proceeding upon the idea that the daughter, Tempe Darrow, was possessed of an estate, which on her death without issue would vest in the other parties named in the bill, but the court did not by decree determine the proper construction of the will.
In 1914 a condemnation proceeding was instituted in De Soto county, Miss., by the Mississippi levee board, to condemn certain property, and the money was paid into court to be distributed according to the rights of the parties, Mrs. Tempe Darrow and other descendants of the brothers and sisters of the whole blood were brought into court by a proceeding instituted by her and others against one of the heirs of the whole blood, and the petition presented upon the theory that Mrs. Darrow was possessed of a life estate, and the others of a remainder, and the funds were apportioned by the court upon that theory, the decree reciting that Mrs. Darrow was then fifty-two years of age, in good health, and fixed the value of her interest upon her life expectancy according to certain mortuary tables. This suit throughout proceeded upon the theory that Mrs. Darrow was the owner of an interest for life, she being then childless, or not having issue of her body, and fifty-two years of age, and the remaining portion, after fixing her life interest, was distributed to the other parties to that proceeding by the chancery court of De Soto county, Miss.
In 1921 the city of Florence, Ala., filed a bill on the equity side of the circuit court of Lauderdale county, Ala., against Mrs. G.M. Darrow (formerly Tempe P. Swoope), making the children and grandchildren of the brothers and sisters of Jacob K. Swoope parties to the suit; that is to say, the brothers and sisters of the whole blood, all of the children and grandchildren of C.C. Swoope, brother of the testator, were made parties to the suit by name. The children of the sister, Fannie Swoope Moore, were also made parties to the suit by name. The children of his half brother, J.S. Billups, and their descendants were made parties to the suit as the unknown heirs of J.S. Billups; and likewise, the descendants of Thomas Clay and Matthew Clay were made parties to the suit by publication. The bill sought to fix a lien upon certain lots in the city of Florence, Ala., owned at the time of his death by Jacob K. Swoope, the charges being based upon the front foot assessment for improvements to property, and prayed for a sale of the property for the payment of the assessments. The original bill in that suit alleged that Mrs. G.M. Darrow (Tempe P. Swoope) held a life interest in the property, and that the children and grandchildren of the brothers and sister of Jacob K. Swoope had a remainder interest in the property. To this bill the will was attached as an exhibit, and also the ordinance making the improvements and the assessment of the benefits against the property. The bill alleged that Jacob K. Swoope died in the year 1873.
Mrs. Darrow demurred to the bill, upon the ground that the will itself showed that she had a fee-simple title to the property. She also filed a cross-bill making the brothers and sisters of Jacob K. Swoope and their descendants parties to the cross-bill.
A demurrer to this cross-bill by Mrs. Darrow was interposed by Edgar C. Swoope, the son of C.C. Swoope, by Mrs. Sue S. Ashford, the daughter of C.C. Swoope, and by Edgar Moore, the son of Fannie Swoope Moore. A pro confesso was taken against the other parties made defendants by publication.
The circuit judge in Florence held that Mrs. Darrow (formerly Tempe Swoope) had only a life interest in the property, and so decreed, but the case was appealed to the Supreme Court of Alabama, and the Supreme Court held, construing the will, that Tempe Swoope, afterwards Mrs. Darrow, acquired a fee-simple title at the death of the testator, subject only to the life estate of Elizabeth T. Swoope, under the will. The court held that under a will devising a life estate to testator's wife and to the daughter all the balance of the property, upon the conditions "that should she (the daughter) die without issue said property is hereby given to my brothers and sisters or their descendants," the daughter, having survived the testator, acquired the fee-simple title, and that the limitation or provision "that should she die without issue" meant that should she die without issue prior to the death of the testator. There was a dissent by three of the judges in this case.
The appellants strongly rely upon this decision as being conclusive authority that Mrs. Tempe Swoope Darrow acquired a fee-simple title to the lands. It is a recognized rule of construction that in construing a will the words used in the will are to be construed according to their interpretation and meaning as defined in the law of the domicile of the decedent. We do not think the case of Darrow v. City of Florence, 206 Ala. 675, 91 So. 606, referred to, is controlling here, for the reason that the facts and surroundings of the testator were not presented to the court in that proceeding, and, had the court known the facts as they appear in the present record, that court would have reached a different decision as to the meaning of the testator in disposing of his property under the said will. It is a recognized rule of construction that the surroundings of the testator at the time of the execution of the will are proper to be considered, and his meaning deduced from, or in the light of, the circumstances surrounding him at said time.
In Abrahams et al. v. Abrahams et al., 219 Ala. 533, 122 So. 625, the Supreme Court of Alabama in the second syllabus of the Southern Reporter said: "Circumstances surrounding execution of will may be considered in connection with language used in determining whether testator intended that gift over was to take effect on the death of donee." In the third syllabus the court said: "Circumstances surrounding execution of will considered in connection with language used held to establish that gift over was to take effect on death of donee, regardless of rule as to words of survivorship relating to death of testator." In that case the testator made provisions for two of his daughters; one of the provisions for the daughters was that: "Item 2d. I will and bequeath unto my beloved daughter, Sallie Wayne the place known as the Dent place and also that portion of the Chapman place lying south and east of a certain slough dividing it from that portion of the Chapman place deeded by me to my son W.T. Abrahams. I further will and desire that if my said daughter, Sallie die without issue that the property herein devised to her shall revert to my heirs at law or such of them or their heirs as may be living at that time." By item 3 of the will provision was made for Lilly Abrahams as follows: "I will and bequeath to my beloved daughter Lilly Abrahams the place known as the Parker place with the appurtenances thereof and also the mules, farming implements and other personal property, except the cotton now on the place or there at the time of my death. And further, at the death of my wife, Sarah T. Abrahams the Homestead in the town of Livingston, Alabama, on which I now reside, I also will and desire that if my said daughter, Lilly Abrahams die without issue that the property herein devised and bequeathed to revert to my heirs at law, or such of them or their heirs as may be living at that time." Both daughters died without issue, Sally Wayne in 1923 and Lilly Abrahams prior to March 10, 1924. The complainants in that case were not all blood relation to the testator, but inherited their interest from his issue, and insistence was made that they were without interest in the residuary estate. It was insisted that the gift over did not take effect, for the reason that the death of the donee did not occur prior to the death of the testator. The court held: "The rule is well established in this state that 'words of survivorship in a will, unless there is a manifest intent to the contrary, always relate to the death of the testator.' Spira v. Frenkel, 210 Ala. 27, 97 So. 104; Darrow v. Florence, 206 Ala. 675, 91 So. 606. But in the instant case there is manifest intent to the contrary.
"The circumstances surrounding the execution of the will, proper here to be considered (Castleberry v. Stringer, 176 Ala. 250, 57 So. 849; Rutland v. Emanuel, 202 Ala. 269, 80 So. 107), in connection with the language used, make it too clear for discussion that the gift over was to take effect upon the death of the donee, and that the general rule as to words of survivorship relating to the death of the testator can have no application without doing violence to the testator's manifest intent to the contrary. Dickson v. Dickson, 178 Ala. 117, 59 So. 58; Smith v. Smith, 157 Ala. 79, 47 So. 220, 25 L.R.A. (N.S.) 1045; McGlathery v. Meeks, 219 Ala. 89, 121 So. 67.
"The devise to these daughters created in them a base or determinable fee. Dickson v. Dickson, supra; Boshell v. Boshell, 218 Ala. 320, 118 So. 553; Davis v. Memphis, etc., R. Co., 87 Ala. 633, 6 So. 140."
In Smith v. Smith, 139 Ala. 406, 36 So. 616, one Mrs. Bocock in the fifth clause of her will devised to her two nephews, Clifford A. and Ralph Smith, the lands in controversy in this case, "in joint and equal rights." By the twelfth clause of the will, she directed that all the balance of her estate, of every kind, real and personal, "shall be equally divided among my relatives and connections as follows," specifying them by name; Clifford A. and Ralph Smith being among the number. Subsequntly she executed a codicil, in which she stated that "after due consideration, I modify said devise by saying, that I do not wish any of the lands sold by said devisees, except the pasture lands, but that they be held and cultivated by said devisees (her two nephews), being satisfied by so doing, they will make themselves useful, independent and happy members of society." She then added certain clauses which, for the purpose of reference, were numbered by the court as follows: "(1) 'If either of my said nephews, Clifford A. Smith, or Ralph Smith, shall die without leaving a child or children surviving him, the share or interest of the one so dying, shall pass to his surviving brother.' (2) 'If both of them shall die without children surviving them, then the devise made to them under the said clause of my will, shall fall back into my estate, and be devised under the 12th clause thereof,' — the residuary clause. (3) 'If either of my said nephews shall die leaving a widow surviving him, she shall be allowed to have a home on the share of her deceased husband, as long as she may choose to do so, she remaining and continuing his widow. If she shall marry again, this provision shall cease from that time.' (4) 'If my said nieces and nephews shall die leaving a child or children surviving them, their respective children shall take their respective shares or interest under the said devises of my will in fee simple.' (5) 'I make no modification of the provision in my said will as to the pasture land, two hundred acres, but wish the said provision carried out according to its intent.'"
In this case the court held that fee created by devise of lands to two persons in joint and equal rights is destroyed by a codicil which provides that the land shall not be sold by said devisees, but shall be held and cultivated by them, and, if either die without child, his interest shall pass to the survivor, and, if both die without child, the devise shall fall back into the estate, and the widow of either dying without child shall have a home on the property; and, if the devisees die leaving children, their respective children shall take their respective shares in fee simple, so that the devisee takes only a life estate, and, in case of the death of either without issue, his widow has no rights in the property. It also held that a provision in a will that children of life tenants, living at their death, shall take their several parts in fee simple, creates contingent remainders for the children until birth, and vested remainders as children are born, subject to divestiture by death before the parent. Also that the provision in a will creating a life estate, and vesting the fee in the children of the life tenants living at their death, if either life tenant dies without leaving children, the estate shall go to the survivor, and, if both so die, the devise shall fall into the residue, creates alternative devises to take the place of the contingent remainders on their failure from lapse or by failure of the condition of their limitation.
The decision in this case reversed a former decision in the same case announced in Smith v. Smith, 139 Ala. 406, 36 So. 616. The original opinion in the last report of this case, 157 Ala. 79, 47 So. 220, 25 L.R.A. (N.S.) 1045, adhered to the construction placed on it in Smith v. Smith, but a dissenting opinion was written, and on a motion for a rehearing one of the judges of the majority went with the dissenting judges and changed the rule. The court held that they were not bound by the former decision, and that under a statute of Alabama they should declare the law as they then conceived it to be, regardless of the announcement in the first opinion.
In the case of Abrahams v. Abrahams, 219 Ala. 533, 122 So. 625, 627, supra, the court held that a devise to daughters, under the will therein construed, created in them a base or determinable fee; citing Dickson v. Dickson, 178 Ala. 117, 59 So. 58, and Boshell v. Boshell [ 218 Ala. 320], 118 So. 553; Davis v. Memphis, etc., R. Co., 87 Ala. 633, 6 So. 140. The court in its opinion said: "The exact technical definition of the residuary estate, whether a contingent remainder or an executory devise, is not a matter of controlling importance here, and we need not stop to inquire or consider. That the testator had the right to so dispose of his property is very clear (Dickson v. Dickson, supra; section 2144, Code of 1876), and the only question for determination is the intention of the testator as to who should take such residuary estate. The language of the will is that it shall 'revert to my heirs at law or such of them or their heirs as may be living at that time.'"
While it is true that this court will give words contained in the will their significance as interpreted by the court of the domicile of the testator, still we look to the general course of decisions of such state, and will not be concluded by any construction of a will, unless all the facts and circumstances surrounding the testator at the time, and all of the parties in interest, are before the court. In this connection we desire to say that it seems to us that, if the facts and circumstances had been before the Alabama court, it would have been compelled to have decided otherwise than it did in the case of Darrow v. City of Florence, supra. We assume that that court would reverse itself and change its decision if all the facts and circumstances were brought to its attention and all of the parties were before the court.
We conceive that we have the same right that the Supreme Court of Alabama would have to decline to follow the decisions in this case, and it is manifest, when we take the circumstances surrounding the testator into consideration, that he was making a will in contemplation of death, and that he apprehended an early dissolution. The daughter, Tempe, at that time was a child of nine years of age. It is inconceivable that in the testator's then condition, being sick unto death with a dreadful disease, having his family summoned to his bedside, summoning a lawyer in a city outside of his residence, and all the other circumstances surrounding him, he contemplated that his daughter should die before he did. We also think that the court did not give proper effect or consideration to certain provisions in the will. The provision in the will, "I give to my daughter, Tempe P. Swoope, all the balance of my property, both real and personal, upon the following conditions and limitations, viz.: that should the said Tempe die without issue of her body, the said property is hereby given to my brothers and sisters, or their descendants, the descendants of each brother or sister to take that share which the brother or sister would have taken had he or she been living," is very important. The words "conditions and limitations" seem to be a limitation upon the estate conveyed to Tempe and the conditions under which that estate should go to the blood of the testator should she die without issue. It is manifest to our minds that the dominant purpose of the testator was to keep his property in his own family; that he did not intend that it should go to strangers of the blood, either to the husband of the daughter, should she marry, or to the heirs of his wife. It is true he is making provisions for both the wife and daughter, who would have been his heirs, or the beneficiaries under the law without a will of his estate. The wife would have had a dower interest in one-third of his property of all kinds.
The will gave certain personal property to others unconditionally. The wife was then given a one-third interest for life in the balance of the estate. The language in the will, "upon the death of my wife, I give and devise to my daughter, Tempe, the portion of property herein given and devised to my wife for the natural life of my wife, and upon the same limitations," conveys clearly to our minds the idea that the testator understood that he was giving the daughter a base or determinable fee in the land, and that the provision about her death without issue certainly did not contemplate her death prior to that of the testator. Under the will, the wife could not have had any estate until the testator died, and the provision, upon the death of the wife, that the part given to her for life should go to the daughter in fee, subject to the limitations and conditions named in the will, clearly manifests an expectation and intent that both the wife and the daughter would survive him. Then, under the will, the daughter acquired the fee to all the property, except the specific legacies given in the first part of the will, to be determined and then to go to the brothers and the sisters or the descendants of the brothers and sisters living at the time of the death of the daughter, Tempe, who had the base or determinable fee.
Under general legal definition, the term "brothers and sisters" includes brothers and sisters of both the whole and the half blood, and we think it manifest from all the facts surrounding the testator at the time he made the will that he intended both brothers and sisters of the whole and the half blood to be beneficiaries of his estate, and upon the death of Tempe without issue the estate went to the brothers and sisters or descendants of brothers and sisters as provided under the will. We think it was the intention of the testator, from the language of the will, to convey to the descendants of brothers and sisters equal with brothers and sisters, should any be then living, his estate, and that the descendants of each brother or sister should take such part as the brother or sister would have taken had he or she been living at the time of the termination of the determinable fee.
As to the two-thirds given direct to Tempe P. Swoope, we think the Two Donee Statute, section 2116, Code of 1930, as it read in 1871, does not affect the right of the brothers and sisters nor their descendants from taking as purchasers under the will. The parties were designed to take as a class, and to take proportionately, that is to say, the descendants of each brother or sister as a class would take that part which the brother or sister if living would have taken. This does not in any sense violate our statute above referred to.
As to the third conveyed to the wife for life and to Tempe upon her death, the brothers and sisters being a third donee and not the right heirs of the testator, would violate the statute, and the will as to this one-third of the lands in Mississippi is ineffective and fails, and the descendants of the brothers and sisters of whole blood take to the exclusion of the sisters and brothers of the half blood.
We think the construction we have given the will and the conclusion we have reached harmonize with the general law of both Alabama and Mississippi. The intention of the testator in the will, in our opinion, conforms to the policy of the state of Mississippi, as announced in section 2116, Code of 1930, which provides: "Every contingent limitation in any conveyance or will made to depend upon the dying of any person without heirs or heirs of the body, or without issue or issue of the body, or without children, or offspring, or descendant, or other relative, shall be held and interpreted as a limitation, to take effect when such person shall die not having such heir, or issue, or child, or offspring, or descendant, or other relative, as the case may be, living at the time of his death, or born to him within ten months thereafter, unless the intention of such limitation be otherwise expressly and plainly declared on the face of the instrument creating it."
It is said, however, that the two donee statute, above referred to, is violated by the use of the word "descendants" — the descendants of each brother or sister to take that share which the brother or sister would have taken had he or she been living; that the term "descendants" implies the offspring, whether in the same degree or not, that may be living, and that it would create estate in equal degree in all of the descendants of such brother or sister, whether the parents of the child or children were dead or not. In other words, the children and granchildren would take jointly with the brothers or sisters and in equal degrees. We do not think the will is susceptible to this construction. It must be given a reasonable interpretation consistent with the intent or probable purpose of the testator. The word "descendants" in the will refers to those who would take the estate under the law of descent and distribution in their parents in case of their parents' death. In other words, that the descendants referred to are such descendants as would inherit if no will were in existence, and the property was vested in the ancestor or came through the ancestor in the course of descent. Therefore we are of the opinion that the court below reached the correct conclusion, and the decree is affirmed.
Affirmed and remanded.
(Note: This is the official opinion)
On a former day of this court, this case was considered by Division B, and the judgment of the court below was affirmed. The case is reported in 135 So. 484, 485 et seq.
Thereafter, the judgment of affirmance was set aside, and the opinion was withdrawn and the case argued before Division A and considered by the court in banc.
As to the two-thirds interest given to the brothers and sisters as second donees, the original opinion is here adhered to, and, as the facts therein are correctly set forth, they will be restated in this opinion:
"Jacob K. Swoope, on the 3d day of July, 1871, executed his last will and testament in a hotel at Memphis, Tennessee, and died the following day. At the time he executed the will, he was very sick with malarial haematuria, and had sent for his family. He was a resident of Florence, Alabama, and owned property in Alabama and Mississippi. The will reads as follows:
"'I Jacob K. Swoope, of the state of Alabama, being now of sound mind do hereby make and ordain this as my last will and testament, hereby revoking all others.
"'All my just debts are first to be paid.
"'I give to my nephews, Jacob K. Swoope, son of C.C. Swoope, and Jacob Swoope Moore, son of R.E. Moore, to be equally divided between them in absolute right, the proceeds of a policy which there is on my life of ten thousand dollars in the Knickerbocker Life Ins. Company. I give to my daughter, Tempe, an absolute right in a policy on my life for the sum of twenty-five hundred dollars in the Mound City Ins. Company.
"'I give to my wife, Elizabeth T. Swoope, one-third of all the balance of my property, both real and personal, wherever situated, for the term of her natural life.
"'I give to my daughter, Tempe P. Swoope, all the balance of my property, both real and personal, upon the following conditions and limitations, viz; that should the said Tempe die without issue of her body, the said property is hereby given to my brothers and sisters, or their descendants, the descendants of each brother or sister to take that share which the brother or sister would have taken had he or she been living. Upon the death of my wife, I give and devise to my daughter, Tempe, the portion of property herein given and devised to my wife for the natural life of my wife, and upon the same limitations.
"'I do hereby appoint Charles C. Swoope, Richard E. Moore, and James E. Beasly, executors of this my last will and testament, and they shall not be required to execute bond for the performance of the trust. I hereby give my gold watch which was my father's to Jacob K. Swoope, the son of C.C. Swoope. I hereby give up and release to my brother, C.C. Swoope, the debt which he owes me, being by three notes and he shall not be required to pay the same.
"'Jacob K. Swoope.
"'Signed and acknowledged by the said Jacob K. Swoope in our presence who signed the same at his request and in his presence as witnesses, and in the presence of each other. July 3, 1871.
"'James Phelan, "'R.W. Averitt, "'D.D. Saunders.'
"The will was probated in Lauderdale county, Alabama, on the 14th day of July, and subsequently in the state of Mississippi. The testator was about thirty-seven years of age at the time of making the will, and his daughter, Tempe, referred to therein, was nine years of age. The testator had one brother of the whole blood, C.C. Swoope, and one sister of the whole blood, Fannie Swoope Moore, two brothers of the half blood, Matthew Clay and J.S. Billups, then living, and a brother of the half blood, Thomas Clay, who had died prior to the making of the testator's will, but who had living children at the time the will was made. The wife of the testator, Mrs. Elizabeth T. Swoope, died in 1890. The daughter, Tempe, married G.M. Darrow, one of the appellants, in 1885, and died in the year 1927 without living issue of her body. All of the brothers of the whole blood and half blood of the testator, and the sister of the whole blood, died before the daughter of said testator.
"In the year 1887, a suit was filed in Lauderdale county, Alabama, setting forth that certain property owned by the testator and disposed of by the will was unprofitable, and the building situated on part of the land, referred to in the bill, was old and in a state of bad repair, and the property was not profitable, and prayed for the sale of the property for reinvestment. The bill also had attached to it a copy of the will, and, originally in the bill, Tempe Swoope Darrow, the daughter of the testator, claimed to be the owner of a fee-simple title, and prayed for a construction of the will; but an amended alternative prayer was made that, if she were not the owner of the fee-simple estate, the court decree the sale for reinvestment, and fix the rights of the parties to the suit therein. This suit remained in court for some time, and the property was ordered sold for reinvestment, the court proceeding upon the idea that the daughter, Tempe Swoope Darrow, was possessed of an estate, which, on her death, without issue, would vest in the other parties named in the bill, but the court did not, by decree, determine the proper construction of the will. In 1914, a condemnation proceeding was instituted in De Soto county, Mississippi, by the Mississippi levee board, to condemn certain property, and the money was paid into court to be distributed according to the rights of the parties. Mrs. Tempe Darrow and other descendants of the brothers and sisters of the whole blood were brought into court by a proceeding instituted by her, and others, against one of the heirs of the whole blood, and the petition proceeded upon the theory that Mrs. Darrow was possessed of a life estate, and the others of a remainder, and the funds were apportioned by the court upon that theory, the decree reciting that Mrs. Darrow was then fifty-two years of age, in good health, and fixed the value of her interest upon her life expectancy according to certain mortuary tables. This suit throughout proceeded upon the theory that Mrs. Darrow was the owner of an interest for life, she being then childless, or not having issue of her body, and fifty-two years of age, and the remaining portion, after fixing her life interest, was distributed to the other parties to that proceeding by the chancery court of De Soto county, Mississippi.
"In 1921, the city of Florence, Alabama, filed a bill on the equity side of the circuit court of Lauderdale county, Alabama, against Mrs. G.M. Darrow (formerly Tempe P. Swoope), making the children and grandchildren of the brothers and sisters of Jacob K. Swoope parties to the suit; that is to say, the brothers and sisters of the whole blood, all of the children and grandchildren of C.C. Swoope, brother of the testator, were made parties to the suit by name. The children of the sister, Fannie Swoope Moore, were also made parties to the suit by name. The children of the half-brother, J.S. Billups, and their descendants, were made parties to the suit as the unknown heirs of J.S. Billups; and, likewise, the descendants of Thomas Clay and Matthew Clay were made parties to the suit by publication. The bill sought to fix a lien upon certain lots in the city of Florence, Alabama, owned at the time of his death by Jacob K. Swoope, the charges being based upon the front foot assessment for improvements to property, and prayed for a sale of the property for the payment of the assessments. The original bill in that suit alleged that Mrs. G.M. Darrow (Tempe P. Swoope) held a life interest in the property, and that the children and grandchildren of the brothers and sister of Jacob K. Swoope had a remainder interest in the property. To this bill the will was attached as an exhibit, and also the ordinance making the improvements and the assessment of the benefits against the property. The bill alleged that Jacob K. Swoope died in the year 1873.
"Mrs. Darrow demurred to the bill, upon the ground that the will itself showed that she had a fee-simple title to the property. She also filed a cross-bill making the brothers and sisters of Jacob K. Swoope and their descendants parties to the cross-bill.
"A demurrer to this cross-bill by Mrs. Darrow was interposed by Edgar C. Swoope, the son of C.C. Swoope, by Mrs. Sue S. Ashford, the daughter of C.C. Swoope, and by Edgar Moore, the son of Fannie Swoope Moore. A pro confesso was taken against the other parties made defendants by publication.
"The circuit judge in Florence held that Mrs. Darrow (formerly Tempe Swoope) had only a life interest in the property, and so decreed, but the case was appealed to the supreme court of Alabama [Darrow v. City of Florence, 206 Ala. 675, 91 So. 606], and the supreme court held, construing the will, that Tempe Swoope, afterwards Mrs. Darrow, acquired a fee-simple title at the death of the testator, subject only to the life estate of Elizabeth T. Swoope, under the will. The court held that, under a will devising a life estate to testator's wife and to the daughter all the balance of the property upon the conditions 'that should she (the daughter) die without issue said property is hereby given to my brothers and sisters or their descendants,' the daughter, having survived the testator, acquired the fee-simple title, and that the limitation or provision 'that should she die without issue' meant that should she die without issue prior to the death of the testator. There was a dissent by three of the judges in this case.
"The appellants strongly rely upon this decision as being conclusive authority that Mrs. Tempe Swoope Darrow acquired a fee-simple title to the lands. It is a recognized rule of construction that in contruing a will the words used in the will are to be construed according to their interpretation and meaning as defined in the law of the domicile of the decedent. We do not think the case of Darrow v. City of Florence, 206 Ala. 675, 91 So. 606, referred to, is controlling here, for the reason that the facts and surroundings of the testator were not presented to the court in that proceeding, and, had the court known the facts as they appear in the present record, that court would have reached a different decision as to the meaning of the testator in disposing of his property under the said will. It is a recognized rule of construction that the surroundings of the testator at the time of the execution of the will are proper to be considered, and his meaning deduced from, or in the light of, the circumstances surrounding him at said time.
"In Abrahams v. Abrahams et al., 219 Ala. 533, 122 So. 625, the supreme court of Alabama, in the second syllabus of the Southern Reporter, said: 'Circumstances surrounding execution of will may be considered in connection with language used in determining whether testator intended that gift over was to take effect on the death of donee.' In the third syllabus, the court said: 'Circumstances surrounding execution of will considered in connection with language used held to establish that gift over was to take effect on death of donee, regardless of rule as to words of survivorship relating to death of testator.' In that case, the testator made provisions for two of his daughters; one of the provisions for the daughters was that: 'Item 2d. I will and bequeath unto my beloved daughter, Sallie Wayne, the place known as the Dent Place, and also that portion of the Chapman Place lying south and east of a certain slough dividing it from that portion of the Chapman place deeded by me to my son, W.T. Abrahams. I further will and desire that if my said daughter, Sallie, die without issue that the property herein devised to her shall revert to my heirs at law, or such of them or their heirs, as may be living at that time.' By item 3 of the will, provision was made for Lilly Abrahams as follows: 'I will and bequeath to my beloved daughter, Lilly Abrahams, the place known as the Parker place with the appurtenances thereof, and also the mules, farming implements and other personal property, except the cotton now on the place or there at the time of my death. And further, at the death of my wife, Sarah T. Abrahams, the homestead in the town of Livingston, Alabama on which I now reside, I also will and desire that if my said daughter, Lilly Abrahams, die without issue that the property herein devised and bequeathed to revert to my heirs at law, or such of them or their heirs as may be living at that time.' Both daughters died without issue, Sally Wayne in 1923, and Lilly Abrahams prior to March 10, 1924. The complainants in that case were not all blood relation to the testator, but inherited their interest from his issue, and insistence was made that they were without interest in the residuary estate. It was insisted that the gift over did not take effect, for the reason that the death of the donee did not occur prior to the death of the testator. The court held: 'The rule is well established in this state that words of survivorship in a will, unless there is a manifest intention to the contrary, always relate to the death of the testator.' Spira v. Frenkel, 210 Ala. 27, 97 So. 104; Darrow v. City of Florence, 206 Ala. 675, 91 So. 606. But in the instant case, there is manifest intent to the contrary. 'The circumstances surrounding the execution of the will, proper here to be considered (Castleberry v. Stringer, 176 Ala. 250, 57 So. 849; Rutland v. Emanuel, 202 Ala. 269, 80 So. 107) in connection with the languages used, make it too clear for discussion that the gift over was to take effect upon the death of the donee, and that the general rule as to words of survivorship relating to the death of the testator can have no application without doing violence to the testator's manifest intent to the contrary.' Dickson v. Dickson, 178 Ala. 117, 59 So. 58; Smith v. Smith, 157 Ala. 79, 47 So. 220, 25 L.R.A. (N.S.) 1045; McGlathery v. Meeks, 219 Ala. 89, 121 So. 67. 'The devise to these daughters created in them a base or determinable fee. Dickson v. Dickson, supra; Boshell v. Boshell, 218 Ala. 320, 118 So. 553; Davis v. Memphis, etc., R. Co., 87 Ala. 633, 6 So. 140.'
"In Smith v. Smith, 139 Ala. 406, 36 So. 616, one Mrs. Bocock, in the fifth clause of her will, devised to her two nephews, Clifford A. and Ralph Smith, the lands in controversy in this case 'in joint and equal rights.' By the twelfth clause of the will, she directed that all the balance of her estate, of every kind, real and personal, 'shall be equally divided among my relatives and connections as follows,' specifying them by name, Clifford A. and Ralph Smith being among the number. Subsequently she executed a codicil in which she stated that: 'After due consideration, I modify said devise by saying that I do not wish any of the lands sold by said devisees except the pasture lands, but that they be held and cultivated by said devisees (her two nephews) being satisfied by so doing they will make themselves useful, independent and happy members of society.' She then added certain clauses which, for the purpose of reference, were numbered by the court as follows: '1. If either of my said nephews, Clifford A. Smith or Ralph Smith, shall die without leaving a child or children surviving him, the share or interest of the one so dying shall pass to his surviving brother. 2. If both of them shall die without children surviving them, then the devise made to them under the said clause of my will, shall fall back into my estate, and be devised under the 12th clause thereof — the residuary clause. 3. If either of my said nephews shall die leaving a widow surviving him, she shall be allowed to have a home on the share of her deceased husband, as long as she may choose to do so, she remaining and continuing his widow. If she shall marry again, this provision shall cease from that time. 4. If my said nieces and nephews shall die leaving a child or children surviving them, their respective children shall take their respective shares or interest under the said devises of my will in fee simple. 5. I make no modification of the provision in my said will as to the pasture land, two hundred acres, but wish the said provision carried out according to its intent.' In this case, the court held that fee created by devise of lands to two persons in joint and equal rights is destroyed by a codicil which provides that the land shall not be sold by said devisees, but shall be held and cultivated by them, and, if either die without child, his interest shall pass to the survivor, and, if both die without child, the devise shall fall back into the estate, and the widow of either dying without child have a home on the property, and, if the devisees die leaving children, their respective children shall take their respective shares in fee simple, so that the devisee takes only a life estate, and, in case of the death of either without issue, his widow has no rights in the property. It also held that a provision in a will that children of life tenants, living at their death, shall take their several parts in fee simple, creates contingent remainders for the children until birth, and vested remainders as children are born, subject to divestiture by death before the parent. Also that the provision in a will creating a life estate, and vesting the fee in the children of the life tenants living at their death, if either life tenant dies without leaving children, the estate shall go to the survivor, and, if both so die, the devise shall fall into the residue, creates alternative devises to take the place of the contingent remainders on their failure from lapse or by failure of the condition of their limitation.
"The decision in this case reversed a former decision in the same case announced in Smith v. Smith, 139 Ala. 406, 36 So. 616. The original opinion in the last report of this case, 157 Ala. 79, 47 So. 220, 25 L.R.A. (N.S.) 1045, adhered to the construction placed on it in Smith v. Smith, but a dissenting opinion was written, and, on a motion for a rehearing, one of the judges of the majority went with the dissenting judges and changed the rule. The court held that they were not bound by the former decision, and that, under a statute of Alabama, they should declare the law as they then conceived it to be, regardless of the announcement in the first opinion. In the case of Abrahams v. Abrahams, 219 Ala. 533, 122 So. 625, supra, the court held that a devise to daughters under the will therein construed created in them a base or determinable fee, citing Dickson v. Dickson, 178 Ala. 117, 59 So. 58, and Boshell v. Boshell, 218 Ala. 320, 118 So. 553; Davis v. Memphis, etc., R. Co., 87 Ala. 633, 6 So. 140. The court in its opinion said: 'The exact technical definition of the residuary estate, whether a contingent remainder or an executory devise, is not a matter of controlling importance here, and we need not stop to inquire or consider. That the testator had the right to so dispose of his property is very clear (Dickson v. Dickson, supra), section 2144, Code of 1876, and the only question for determination is the intention of the testator as to who should take such residuary estate. The language of the will is that it shall "revert to my heirs at law, or such of them or their heirs as may be living at that time."'
"While it is true that this court will give words contained in the will their significance as interpreted by the court of the domicile of the testator, still we look to the general course of decisions of such state, and will not be concluded by any construction of a will, unless all the facts and circumstances surrounding the testator at the time, and all of the parties in interest, are before the court. In this connection, we desire to say that it seems to us that, if the facts and circumstances had been before the Alabama court, it would have been compelled to have decided otherwise than it did in the case of Darrow v. City of Florence, supra. We assume that that court would reverse itself and change its decision, if all the facts and circumstances were brought to its attention, and all of the parties were before the court.
"We conceive that we have the same right that the supreme court of Alabama would have to decline to follow the decisions in this case, and it is manifest, when we take the circumstances surrounding the testator into consideration, that he was making a will in contemplation of death, and that he apprehended an early dissolution. The daughter, Tempe, at that time, was a child of nine years of age. It is inconceivable that, in the testator's then condition, being sick unto death with a dreadful disease, having his family summoned to his bedside, summoning a lawyer in a city outside of his residence, and all the other circumstances surrounding him, he contemplated that his daughter should die before he did. We also think that the court did not give proper effect or consideration to certain provisions in the will. The provision in the will, 'I give to my daughter, Tempe P. Swoope, all the balance of my property both real and personal, upon the following conditions and limitations, viz., that should the said Tempe die without issue of her body, the said property is hereby given to my brothers and sisters, or their descendants, the descendants of each brother or sister to take that share which the brother or sister would have taken had he or she been living,' is very important. The words, 'conditions and limitations,' seem to be a limitation upon the estate conveyed to Tempe, and the conditions under which that estate should go to the blood of the testator, should she die without issue. It is manifest to our minds that the dominant purpose of the testator was to keep his property in his own family; that he did not intend it should go to strangers of the blood, either to the husband of the daughter, should she marry, or to the heirs of his wife. It is true he is making provisions for both the wife and daughter, who would have been his heirs, or the beneficiaries under the law without a will of his estate. The wife would have had a dower interest in one-third of his property of all kinds.
"The will gave certain personal property to others unconditionally. The wife was then given a one-third interest for life in the balance of the estate. The language in the will, 'upon the death of my wife, I give and devise to my daughter, Tempe, the portion of property herein given and devised to my wife, for the natural life of my wife, and upon the same limitations,' conveys clearly to our minds that the testator understood that he was giving the daughter a base or determinable fee in the land, and that the provision about her death without issue certainly did not contemplate her death prior to that of the testator. Under the will, the wife could not have had any estate until the testator died, and the provision, upon the death of the wife, that the part given to her for life should go to the daughter in fee, subject to the limitations and conditions named in the will, clearly manifests an expectation and intent that both the wife and the daughter would survive him. Then, under the will, the daughter acquired the fee to all the property, except the specific legacies given in the first part of the will, to be determined and then to go to the brothers and the sisters, or the descendants of the brothers and sisters living at the time of the death of the daughter, Tempe, who had the base or determinable fee.
"Under general legal definition, the term 'brothers and sisters' includes brothers and sisters of both the whole and the half blood, and we think it manifest from all the facts surrounding the testator at the time he made the will that he intended both brothers and sisters of the whole and the half blood to be beneficiaries of his estate, and upon the death of Tempe, without issue, the estate went to the brothers and sisters or descendants of brothers and sisters as provided under the will. We think it was the intention of the testator, from the language of the will, to convey to the descendants of brothers and sisters equal with brothers and sisters, should any be then living, his estate, and that the descendants of each brother or sister should take such part as the brother or sister would have taken had he or she been living at the time of the termination of the determinable fee.
"As to the two-thirds given direct to Tempe P. Swoope, we think the Two Donee Statute, section 2116, Code of 1930, as it read in 1871, does not affect the right of the brothers and sisters nor their descendants from taking as purchasers under the will. The parties were designed to take as a class, and to take proportionately, that is to say, the descendants of each brother or sister as a class would take that part which the brother or sister, if living, would have taken. This does not, in any sense, violate our statute above referred to."
As to the one-third interest conveyed to the wife, and to Tempe upon her death, it is contended that the will should be construed to mean that the death of Tempe should take place during the life of the wife in order to vest in the brothers and sisters the estate undertaken to be devised to them under the will. We think the very language of the will clearly shows that it was not the intention of the testator to vest the fee in Tempe if she should survive the wife, but that the intention of the testator was that, should Tempe die at any time without issue of her body, the estate should, in that event, vest in the brothers and sisters of the testator.
When the language of the will is carefully considered, it will be seen that the conditions and limitations imposed upon the one-third interest devised to the wife for her lifetime were the same as those provided for in the two-thirds devised to Tempe.
While there is persuasiveness in the argument that the term "brothers and sisters" meant those of the whole blood, we think the weight of the authority and the better reasoning demonstrate that the term, "brothers and sisters," embraces brothers and sisters of the whole and of the half blood, and that is clearly the meaning as defined by the Alabama court, the domicile of the testator.
It is contended that "right heirs," as used in section 2765, Code of 1906, mean any person who could, under any possible condition, be heir of a testator, and that included in the term are brothers and sisters of the half blood who could, if there are none of the whole blood, inherit from the testator; and that this construction should be given to the statute, and that it would result in upholding the will and making it valid throughout.
There is good reason for an argument of this kind; but, looking to the decisions defining "right heirs" and the reasons underlying these decisions, this construction cannot be placed upon the statute. That statute, by its terms, means those persons who, in event of the testator's or grantor's death, would inherit property as heirs at law. Our own court in Harris v. McLaran, 30 Miss. 533, decided in 1885, said: "The terms 'lawful heirs,' 'right heirs,' and 'heirs,' are synonymous: their signification is fixed by the law; and when they are used in a deed or will, without any superadded words or phrases, indicating a different meaning, they are always understood to be used according to their legal acceptation."
In Brown v. Wadsworth, 168 N.Y. 225, 61 N.E. 250, 253 (1901), the court said: "'Right heirs' is a term formerly in use in the creation of estates tail to distinguish the preferred to whom the estate was limited from the heirs in general, to whom upon failure of the preferred heir and his line the remainder over was usually finally limited. With the abolition of estates tail the term has fallen into disuse. If no preference was made among the heirs, it would not import any, and therefore it here means the same as the single word 'heirs.'"
In Peabody v. Cook, 201 Mass. 218, 87 N.E. 466, 467, 16 Ann. Cas. 296, the court said:
"The only doubt arises from the presence of the word 'right' before 'heirs' in these two clauses of the will. These two words have been adverted to in Brown v. Wright, 194 Mass. 540, 545, 80 N.E. 612, and in Boston Safe Deposit, etc., Co. v. Blanchard, 196 Mass. 35, 81 N.E. 654, but their meaning was not defined in either of these cases. The phrase 'right heirs' has been before other courts in several instances, and has generally been held to mean the same as heirs at law" — citing authorities. See, also, case notes herein.
Inasmuch as the brothers and sisters of the half blood were not the right heirs of the testator, Jacob K. Swoope, the gift over to them jointly with the brothers and sisters of the whole blood made them third donees under the statute, section 2765, Code of 1906, and prior Codes, and they cannot take under the will.
We are of opinion, however, that the decree of the chancery court of De Soto county in 1914 adjudicated and fixed the interest of Tempe, the daughter, and of the descendants of the brothers and sisters of the whole blood. In this decree, it was adjudged that Tempe had a life interest, and that the brothers and sisters of the whole blood, or their descendants, were entitled to the fee burdened with a life interest.
In view of the fact that this decree adjudicated the rights of Tempe Swoope Darrow and the descendants of the sister and brother of the whole blood, it binds them in this suit and settles their rights. The descendants of the half bloods are not interested in this one-third devised to the widow for life, and can assert no interest therein.
In that case, Tempe Darrow, nee Swoope, with certain of the descendants of the brothers and sisters of the whole blood, filed a petition in the chancery court to have the proceeds of part of the land involved in this suit adjudicated and the rights of the parties and the money paid over according to the rights of the parties. The decree in this suit fixed the right of Tempe Swoope Darrow as an estate for life and the rights of the brothers and sisters of the whole blood, or their descendants, as that of remaindermen entitled to the fee. The original petition in that case sought to have all the descendants of the brothers and sisters of the whole blood join in the petition, reciting that Tempe was entitled to the life estate, and that the others were remaindermen. However, E.C. Swoope and C.C. Swoope, descendants of the whole blood, did not join in the petition for some reason. Thereupon, a petition was filed in the chancery court for a division of the funds paid into court by condemnation of part of the property for levee purposes, joined in by the original signers of the petition, in which the said E.C. Swoope and C.C. Swoope were made defendants, and at the trial they entered their appearance. The decree of the court recited that the court heard oral and documentary evidence, and directed the money to be paid over in accordance with the rights fixed in the decree. Under this decree, Tempe Swoope Darrow received the greater part of the money paid into court, the amount she received being approximately two-thirds of the whole amount paid in for the lands condemned.
This decree was never appealed from. The proceeds of the condemnation were paid to Tempe Swoope Darrow and to the descendants of the brothers and sisters of the whole blood.
We think this constituted res adjudicata between Tempe Swoope Darrow and her privies, and the heirs of Jacob K. Swoope of the whole blood, parties to that suit.
As to the one-third interest given to the widow for life, and afterwards to Tempe, the brothers and sisters of the half blood, or their descendants, have no legal concern therewith, and were not necessary parties to the original suits filed in 1914 in De Soto county, and their not being parties to that suit in no manner affected the rights of Tempe Swoope Darrow and her privies, and the descendants of the brothers and sisters of the whole blood. In Von Zondt v. Town of Braxton, 149 Miss. 461, 115 So. 557, 558, in the 3rd Syllabus, it was held that: "In a second action between same parties or their privies, although cause of action may be different, judgment in first action is res judicata in second as to any point or question actually litigated and determined in the first."
At the conclusion of the opinion in this case, the court said: "The cause of action may here be, and we will assume is, different from the one in the case wherein the bonds were validated; nevertheless the judgment there rendered is res judicata here, for the rule is that, in a second action between the same parties, or their privies, although the causes of action may be different, the judgment in the first action is res judicata in the second as to any point or question actually litigated and determined in the first. 15 R.C.L. 973; 34 C.J. 868; The Y. M.V.R.R. Co. v. Sibley, 111 Miss. 21, 71 So. 167; Miller v. Bulkley, 85 Miss. 706, 708, 38 So. 99."
In Harvison v. Turner, 116 Miss. 550, 77 So. 528, 530, it was held that: "Even though the relief sought may be different from that asked in the first suit, yet where the causes of action are substantially the same, the question is res judicata. . . . Where the pleadings in a case present issues involved in said case which might have been litigated therein, as well as those actually litigated, they are res judicata."
The court in this case cited Burkett v. Burkett, 81 Miss. 593, 33 So. 417; Hubbard v. Flynt, 58 Miss. 266; and Hardy v. O'Pry, 102 Miss. 197, 59 So. 73; 23 Cyc. 1215.
In Bates v. Strickland, 139 Miss. 636, 103 So. 432, it was held that, where the court has jurisdiction of the subject-matter and the parties in interest, its judgment is not alone res adjudicata of the questions specifically presented by the pleadings, but is also res adjudicata of all questions necessarily involved and which could have been presented. In the course of this opinion the court cites many authorities, among which is Jeter v. Hewitt, 22 How. 352, 16 L.Ed. 345, stating as follows: "Res judicata renders white that which is black, and straight that which is crooked."
There are numerous other authorities in this state and out of it which hold to the same effect. See 15 R.C.L. subtitle "Judgments," secs. 450-451; 34 C.J., page 874 et seq., secs. 1283, 1289, 1296, 1315, 1316, 1331, 1341, and 1343; and Land v. Keirn, 52 Miss. 341.
The learned chancellor held that the case was not res adjudicata, but that the appellant Tempe Kyser, in the De Soto county suit, was bound by the equitable election and by estoppel from asserting what is contrary of what was there presented to and decided by the court.
As stated, we are of opinion that the judgment in the suit in 1914 constituted res adjudicata between the appellants George M. Darrow and Tempe Kyser and the descendants of brothers and sisters of the whole blood.
We think the chancellor was in error in decreeing to the descendants of the brothers and sisters of the half blood any interest in the one-third interest devised to the wife of the testator for her life, and upon her death to Tempe Swoope Darrow, his daughter; but that said one-third interest should go to the descendants of the whole blood, by virtue of the decree fixing the rights between the parties and Tempe Swoope Darrow in the De Soto county suit.
For the error indicated, the judgment will be reversed as to the one-third interest, and affirmed as to the two-thirds interest, and the cause remanded for a decree in accordance with this opinion as to the one-third interest; and the judgment of the court below will be affirmed as to the two-thirds interest.
Affirmed in part, and reversed in part.