Opinion
No. 34235.
October 28, 1940. Suggestion of Error Overruled, December 23, 1940.
1. WILLS.
The quoted words in will bequeathing house and lot to son for life and then to son's wife for life, with remainder to son's heirs "and in default of them, to his brother and sister or the heirs of his brother and sister," did not operate, on death of son without children, to vest remainder in sister and the brother predeceasing son, but meant that, in event either brother or sister were dead at time of son's death, heirs would be "purchasers" under will, instead of "heirs at law."
2. WILLS.
Where will bequeathed house and lot to son for life and then to son's wife for life with remainder to son's heirs, and, in default of heirs, to son's brother and sister or heirs of brother and sister, and son died without children after death of brother who was survived by one son, claim of brother's son was "contingent interest," and remainder would not become a "vested interest" until death of wife, when heirs of brother and sister would take as "purchasers," but interest of sister living at death of wife would pass to heirs of wife, but, if sister should predecease wife, heirs of sister would take as "purchasers" under will.
3. WILLS.
A will bequeathing house and lot to son for life and then to son's wife for life, with remainder to son's heirs and, in default of heirs, to son's brother and sister or heirs of brother and sister, could not be defeated by quitclaim or other deeds from brother and sister to son or wife, and such deeds were ineffectual to vest fee-simple title in son or wife.
APPEAL from the chancery court of Claiborne county; HON. R.W. CUTRER, Chancellor.
Sam C. Cook, of Greenville, for appellant.
Section 2448 of the Code of 1892 controls the construction of Mrs. Gordon's will and points the path for the court to follow in determining the remainderman to take the property in question on the death of Charles Addison Gordon, without issue. The limitation in Mrs. Gordon's will is, within the meaning of the above statute, a contingent limitation. It is made to depend upon the death of Charles Addison Gordon without heirs of his body; thereupon the statute commands that that limitation shall take effect when Charles Addison Gordon shall die not having children. In other words, the language of Mrs. Gordon's will is made by statute to mean that the children of Charles Addison Gordon should only take the remainder in this estate in the event they survive their father. The date of his death is the date to determine in whom the property in question will ultimately vest. Under Mrs. Gordon's will the remainder estate goes either to the children of Charles Addison Gordon, if living at the date of his death, or to William P. Gordon, if living, or to his heirs, as devisees of Joanna A. Gordon, if William P. Gordon be dead.
Sec. 2116, Code 1930; Sims v. Conger, 39 Miss. 231.
Our section 2446 of the Code of 1892 abolishing the rule in Shelley's case commands the court to construe the words, "or their heirs," in Mrs. Gordon's will, to mean that the heirs of William P. Gordon take as purchasers under the will of Joanna A. Gordon.
Sec. 2114, Code of 1930.
The intention of the testator is the guiding star in the construction of the will.
Sorsby v. Vance, 136 Miss. 564; Chrisman v. Bryant, 108 Miss. 311; Lesche v. Cutrer, 135 Miss. 469; Scott v. Turner, 137 Miss. 636; Dealy v. Keatts, 157 Miss. 412.
A will is construed within its four corners, effect being given to all its language.
Ball v. Phelan, 94 Miss. 293; Keeley v. Adams, 149 Miss. 201; Simpson v. Watkins, 162 Miss. 242.
A will is construed according to the grammar of its language.
Vannerson v. Culbertson, 10 S. M. 150; Hervey v. Johnson, 111 Miss. 566.
A court is not authorized to eliminate, or change, or substitute language in a will, but is required to give effect to that language according to its meaning.
Schlottman v. Hoffman, 73 Miss. 188.
The court below construed the word "or" in Mrs. Gordon's will to mean "and." Such a construction, we respectfully submit, does violence both to the language and the intent of the testatrix.
Century Dictionary; 69 C.J. 353, 354, sec. 1361, and cases there cited; Ebey v. Adams, 25 N.E. 1013, 135 Ill. 80, 10 L.R.A. 162; Gilmor's Estate, 154 Pa. St. 523, 35 Am. St. Rep. 855.
We are unable to find any Mississippi cases in which controversy arose as to whether or not the disjunctive "or" means the conjunctive "and" in the courts of Mississippi as applied to wills.
Darrow v. Moore, 142 So. 447.
It is said by counsel that even though "brother and sister" took a contingent remainder, such estate could be alienated. That is very true. The brother and sister took a contingent remainder; but as to the brother, father of the defendant, the contingency upon which he took his estate failed, and, therefore, the estate transferred by him failed in his grantee. The estate of the brother was one contingent that he survive Charles Addison Gordon. He did not survive Charles Addison Gordon, and, therefore, the remainder vested in the heirs of William P. Gordon.
The true construction of the will, as we construe it, is that on the death of Charles Addison Gordon, the heirs of William P. Gordon took the remainder in a one-half undivided interest in the property in controversy. William P. Gordon is confessedly one of those heirs. Whether or not he is the sole one is not before the court for consideration. If the court should undertake this suit despite the absence of one of William P. Gordon's heirs from the record, the proper decision, we suggest, would be to reverse the case with directions to dismiss the bill for the reason that the appellee is not vested with the fee simple title to the property in controversy. The exact determination of that title could be left to a cause in which all interested parties were before the court.
Joanna A. Gordon, under the statute, was empowered to choose the ultimate limitee of the remainder in the property in question, so long as that ultimate limitee was one of her right heirs upon the date that the limitation took effect, and that she was authorized to determine when that limitation should take effect, so long as it did not extend beyond the lives of the two persons in being at the date of the effectiveness of her will.
Middlesex Banking Co. v. Field, 84 Miss. 646, 37 So. 145.
E.S. and J.T. Drake, of Port Gibson, for appellee.
The title devised to the "brother and sister," by the will in question, under whom appellee claims is a remainder in fee, which could be conveyed by them and bind their heirs.
Code 1892, secs. 2435, 2438; Sims v. Conger et al., 39 Miss. 231; Busby v. Rhodes, 58 Miss. 237; 2 Blackstone, p. 108; 21 C.J., page 992, sec. 18 and page 997, secs. 155, 156; Chapman v. Sims, 53 Miss. 154; LeFlore County v. Allen, 80 Miss. 298, 313; Alexander v. Richardson, 106 Miss. 517; Tiedeman on Real Property, Chap. III, sec. 37, and page 327, sec. 411; Chapman v. Chapman, 18 S.E. 913; Mulls, Exors., v. Mulls, Admrs., 81 Pa. St. 393; Patterson, Exors., v. Hawthorn, Admrs., 112 Pa. 12; Darrow v. Moore, 163 Miss. 705; Middlesex Banking Co. v. Field, 84 Miss. 646; Scott v. Turner, 137 Miss. 636.
If the will in question be construed as appellee would have it, then it is in contravention of the Two-Donee Statute and the first taker, Charles A. Gordon, under whom appellee claims, took a fee simple.
Sec. 2436, Code 1892; Sec. 2765, Code 1906; Bibby v. Broome, 116 Miss. 70; Middlesex Banking Co. v. Field, 84 Miss. 646; Darrow v. Moore, 163 Miss. 705, 142 So. 447; Harring v. Flowers, 91 Miss. 242; Wallace v. Wallace, 114 Miss. 591; Davenport v. Collins, 95 Miss. 358; Scott v. Turner, 137 Miss. 636; Norfleet v. Norfleet, 151 Miss. 790; Liberty Bank v. Wilson, 116 Miss. 377; Smith v. Muse, 134 Miss. 827; Caldwell v. Willis, 57 Miss. 555; Nicholson v. Fields, 111 Miss. 638; Hanie v. Grissom, 178 Miss. 108.
The will in question confers a vested remainder in the "brother and sister," under whom appellee claims, who could alienate the same and bind their heirs.
Washburn on Real Estate, sec. 1541; 41 C.J. 997, sec. 155.
S.L. McLaurin, of Brandon, for appellee.
The attempted bequest to the heirs of Charles A. Gordon (son of Mrs. Joanna Gordon, testatrix) after a life estate to Charles and a second life estate to Mary (wife of Charles) violates the two-donee statute because the heirs of Charles were not heirs of Mary, and were not heirs of the donor.
Sec. 2436, Code of 1892; Alexander v. Richardson, 106 Miss. 517; Darrow v. Moore, 163 Miss. 705; Harris v. McLaran, 30 Miss. 533 -570; Jordon v. Roach, 32 Miss. 481; Powell v. Brandon, 24 Miss. 343; Caldwell v. Willis, 57 Miss. 555; Scott v. Turner, 137 Miss. 636.
Limitation of Issue Statute (Section 2448, Code of 1892) is not applicable, as bequest to heirs of Charles is void.
The void bequest to the heirs of Charles being eliminated, the will would be: (a) A life estate to Charles; (b) A life estate to Mary; (c) Remainder to William (father of appellant) and Margaret, or their heirs.
As William and Margaret were both living when testatrix died, they were immediately vested with the remainder.
Schlater v. Lee, 117 Miss. 701; Sec. 2436, Code 1892.
Appellant takes nothing under the will, as his father (William P. Gordon) was living when testatrix died, and appellant is not an heir of testatrix.
Alexander v. Richardson, 106 Miss. 517; Schlater v. Lee, 117 Miss. 701.
If the void bequest to the heirs of Charles creates an estate tail, the first donee (Charles) took an estate in fee simple.
If the void bequest to the heirs of Charles be treated as a nullity, the title subject to the life estates vested immediately in William and Margaret when testatrix died.
Schlater v. Lee, 117 Miss. 701.
If the will passed a fee simple title to Charles, the first donee, or to William and Margaret, upon the death of testatrix, the appellee acquired a fee simple title by the life estate to her and the deeds from William and Margaret to Charles, and the deed from Charles to appellee, and by the death of Charles.
Sec. 2438, Code of 1892.
Argued orally by Sam C. Cook, for appellant, and by J.T. Drake and S.L. McLaurin, for appellee.
The appellee, complainant in the court below, filed a bill to cancel the claim of the appellant to a certain property in Port Gibson, Mississippi. She deraigned title through a will executed by Mrs. Joanna Gordon, who then owned the property devised in the will. The provision in the will through which complainant's claim was deraigned, reads as follows: "I give and bequeath unto my beloved son Charles Addison Gordon, the house in Port Gibson, Mississippi, in which he now resides, with the lot on which it stands, fronting one hundred and fifty feet on Church Street and running back one hundred and fifty feet, for life, and after his death, to his wife, Mary F. Gordon, for life, with remainder to the heirs of the body of said Charles A. Gordon, and in default of them, to his brother and sister or the heirs of his brother and sister. The estate hereby given to the said Mary F. Gordon is a life estate after the death of the said Charles A. Gordon."
At the time of the execution of the will Charles Addison Gordon was living upon the property described above. On May 14, 1905, Mrs. Joanna Gordon died, leaving as her heirs her three children, Charles Addison Gordon, William Preston Gordon and Margaret Briggs Gordon, the two last named being at that time unmarried. On May 22, 1905, William Preston Gordon and Margaret Briggs Gordon executed a quitclaim deed to Charles Addison Gordon, which, after describing the property conveyed, ended with the following clause: "Together with all the buildings, tenements and hereditaments thereunto belonging, with all our interest whether present, prospective, or future in reversion or remainder." On May 27, 1905, the will was probated.
Charles A. Gordon, on January 1, 1910, executed a deed to his wife, Mary F. Gordon, the appellee, this being a warranty deed undertaking to convey to Mary F. Gordon the fee simple title to the above-mentioned house and lot. After the execution of the quitclaim deed by William Preston Gordon and Margaret Briggs Gordon, the former married, and to him and his wife a son was born, who is the appellant in this case, defendant in the court below.
William Preston Gordon, son of the testator, died on the 13th day of November, 1917, leaving as his sole heirs-at-law his son, William P. Gordon, and his wife, Josie B. Gordon. Charles A. Gordon died in 1937, without heirs of his body, having no children or descendants. The bill contained this allegation as to Josie B. Gordon, widow of William P. Gordon, who was never made a party to this suit: "That neither said Margaret Briggs Gordon or Josie B. Gordon have ever at any time asserted any interest in said property, said Margaret Briggs Gordon, therein calling herself Margaret B. Gordon, having executed to your complainant, since the death of said Charles Addison Gordon, a further quitclaim deed to said property, which further deed is dated October 15, 1937, is duly acknowledged, and is of record on page 252 of deed book 4-W of the deed records of said county, a copy of which is filed as exhibit `D' hereto."
The appellant, William P. Gordon, filed his answer, which embraced a demurrer to the bill, in which he admitted the execution of the will and each of the said deeds, but denied the title of the complainant, appellee here; denied that she was entitled to the relief prayed, and set up by way of demurrer that there was no equity on the face of the bill; that the bill affirmatively shows that the complainant was vested only with an estate limited to the term of her natural life; and that the bill shows on its face the lack of a party necessary and essential to the disposition of said cause.
The complainant in the court below, Mary F. Gordon, testified that William P. Gordon was asserting title or claim in the lands embraced in the will and the deeds, which cast a cloud upon her title, etc.
It appears that William P. Gordon, son of the testatrix, Joanna Gordon, died during the lifetime of Charles A. Gordon, leaving as his heirs-at-law his wife, Josie B. Gordon, and his son, William P. Gordon, the appellant. The Chancellor gave a decree for the complainant in this cause, and canceled the claims of William P. Gordon to said house and lot; from which decree the defendant, William P. Gordon, took this appeal.
It appears from the provision of the will heretofore quoted that there were created two life estates, one in Charles A. Gordon, the other in his wife after his death. Charles A. Gordon having died without heirs of his body, there was no one in whom the fee could vest at his death. Consequently, the latter provisions of the will came into play, and are here presented for construction.
The provision of the will, "and in default of them, to his brother and sister or the heirs of his brother and sister," could not come into play, so as to vest the remainder in Margaret Briggs Gordon and William P. Gordon, son of the testatrix, because William P. Gordon was not then living; and we think the provision for the heirs of the brother and sister clearly meant that if either the brother or sister were dead at the time of Charles A. Gordon's death, the provision would come into play, constituting such heirs purchasers under the will, instead of heirs-at-law. In other words, the claim or right of the appellant is contingent, and would come into play in event he is living at the time of Mary F. Gordon's death, she being the life tenant. That is, the remainder does not become a vested estate until the death of Mary F. Gordon, when the heirs of William P. Gordon, and Margaret B. Gordon, will take as purchasers. If Margaret B. Gordon be living at the death of Mary F. Gordon, her interest would pass to the heirs of Mary F. Gordon; but if she should die before Mary F. Gordon, then the heirs of Margaret B. Gordon would take as purchasers under the will. Should the appellant be living at the time of appellee's death, his interest would become a vested interest, whereas it is now a contingent interest, and as such a valid claim, recognized in law.
It is contended that the deeds executed by William Preston Gordon and Margaret Briggs Gordon on May 22, 1905, created a fee simple title in Charles A. Gordon, and that such deeds estopped the heirs of William P. Gordon, and Margaret B. Gordon from ever asserting any claim to this property. The will could not be defeated by the quitclaim, or other deeds, from William P. Gordon or Margaret B. Gordon. The appellant did not take his estate as an heir, or by descent from his father, but takes as a purchaser under the will, the word "heirs," being used in the will in this connection, to describe the person who would, at the death of Mary F. Gordon should she survive Charles A. Gordon, become vested in the remainder mentioned. The deeds were ineffective to vest in Charles A. Gordon a fee simple title, or to vest such title in his wife. She has an estate for life only, and did not acquire any title other than for life under the will and the deed. Consequently, the Chancellor was in error in cancelling the claim of William P. Gordon, and in vesting the fee in Mary F. Gordon.
In view of this fact, it is unnecessary now to decide whether Josie B. Gordon, wife of William P. Gordon, was a necessary party to the suit. For the error indicated the judgment will be reversed and the bill dismissed.
Reversed and dismissed.