Summary
In Strickland, et al. v. Delta Investment Company, 163 Miss. 772, 137 So. 734, this rule was deduced: "Where, from entire will, testator's meaning is doubtful, extrinsic evidence, including evidence that testator himself wrote will and was inexperienced in such matters, is admissible to clear up ambiguity."
Summary of this case from Hutton v. HuttonOpinion
No. 29618.
November 13, 1931.
1. WILLS.
If, from entire will, testator's meaning is doubtful, circumstances surrounding testator when making will and his relation to interested parties will be considered in determining whether terms were used in legal sense.
2. WILLS.
Where, from entire will, testator's meaning is doubtful, extrinsic evidence, including evidence that testator himself wrote will and was inexperienced in such matters, is admissible to clear up ambiguity.
3. WILLS.
In determining whether words were used in technical sense, court should consider whether testator was familiar with technical meanings.
4. EVIDENCE.
It is common knowledge that terms "heirs" and "children" in popular sense have same significance.
5. WILLS.
Where consideration of whole will renders it uncertain whether testator used term "heirs" as meaning children, extrinsic evidence is admissible.
6. WILLS.
Court construing will should be placed as fully as possible in situation of testator.
7. WILLS.
Use of different words in will applying to same subject-matter indicates that testator had in view different results.
8. WILLS.
Devise of land without words of inheritance vests fee-simple title (Code 1930, section 2112).
9. WILLS. Clause providing that remainder of estate should be divided between testator's brother for his daughter named and wife's niece and her heirs was ambiguous, and evidence regarding circumstances surrounding testator when making will was improperly excluded.
The clause in question was ambiguous because testator provided that his niece should have one-half of remainder of estate and made no reference to her heirs, whereas, he provided that his wife's niece and her heirs should have the other half to be divided between them. The clause was also ambiguous because of the word "divided," and the ambiguity was not cleared up by consideration of the whole will.
APPEAL from chancery court of Holmes county. HON. M.B. MONTGOMERY, Chancellor.
Boothe Pepper and Ruff, Johnson White, all of Lexington, for appellants.
A testator may ignore the technical meaning of the word, heirs, and in its interpretation such a meaning may be given it as the testator evidently intended it should have, as disclosed by the whole instrument. As a mere matter of construction the word "heir" may be interpreted as the equivalent of "child" when the context so requires.
Byrd v. Henderson, 139 Miss. 140, 104 So. 100; Harkelroad v. Bass, 84 Miss. 483, 36 So. 537; 29 C.J., page 301; Davenport v. Collins, 95 Miss. 358, 48 So. 733; 28 R.C.L., p. 248; Wilberding v. Miller, 88 Ohio St. 609, 106 N.E. 665, L.R.A. 1916A. 718; MacLean v. Williams, 116 Ga. 257, 42 S.E. 485, 59 L.R.A. 125; Moon v. Stewart, 87 Ohio St. 349, 101 N.E. 344; Ann. Cas. 1914A 104, 45 L.R.A. (N.S.) 48 and note; Wallace v. Martin, 106 Tenn. 341, 61 S.W. 73, 82 A.S.R. 882; Campbell v. Noble, 110 Ala. 382, 19 So. 28; Lockwood's Appeal, 55 Conn. 157, 10 A. 517; Seymore v. Bowles, 172 Ill. 521, 50 N.E. 122; Mace v. Cushman, 45 Me. 250; Castleberry v. Stringer, 176 Ala. 250, 57 So. 849; Gardiner v. Fay, 182 Mass. 492, 65 N.E. 825; Croom v. Herring, 11 N.C. 393.
If the same phraseology was not used with reference to the devises to Annie Mary Edwards, and Mrs. Pearlie Strickland, there should be some reason accounting for the difference for it is presumed that every word is intended by the testator to have some meaning.
28 R.C.L., page 217, par. 176; Ball v. Phelan, 94 Miss. 293, 49 So. 956, 23 L.R.A. (N.S.) 895; Archer v. Palmer et al., 112 Ark. 527, 167 S.W. 99, Ann. Cas. 1916B, page 573; McCormick v. Reinberger, 192 Ky. 608, 234 S.W. 300; Tea v. Millan, 257 Ill. 624, 101 N.E. 209, 45 L.R.A. (N.S.) 1163.
The use of different words in a will, applying to the same subject-matter, indicates that the testator had in view different results.
Williams v. Fundingsland, 74 Colo. 315, 221 P. 1084, 63 A.L.R. 77.
If the terms are plain and unambiguous taking the whole will into consideration, the court would give them their legal meaning, but if an examination of the whole will shows that it is doubtful what meaning the testator intended to convey by the will, the circumstances surrounding the parties may be looked to to determine whether the words were used in their legal signification or whether they were intended to be given a different meaning.
Byrd v. Henderson, 139 Miss. 140, 104 So. 100; 40 Cyc., page 1431.
But wills are, of all classes of legal instruments, least to be governed in their construction by their technical terms. Because wills here are most frequently drawn by persons unacquainted with legal phraseology and ignorant of the meaning which the law attaches to the words they use. Especially where a will bears earmarks of having been drawn by a layman, and not by a lawyer, the court, in the endeavor to arrive at the intent of the testator, will not view the language technically but liberally and with reference to its popular meaning.
28 R.C.L., page 224, par. 185; Giles v. Little, 104 U.S. 291, 26 L.Ed. 745; Bosley v. Wyatt, 14 How. 390, 14 L.Ed. 468; Westcott v. Binford, 104 Ia. 645, 74 N.W. 18, 65 A.S.R. 530; Kelly v. Reynolds, 39 Mich. 464, 33 Am. Rep. 418; Lightfoot v. Mayberry, 1914, A.C. 782, 83 L.J. Ch. (N.S.) 627, 111 L.T. (N.S.) 300, 58 Sol. J. 609; Ann. Cas. 1915A 464, 7 British Rul. Cas. 957; Moon v. Stewart, 87 Ohio St. 506, 101 N.E. 1128, Ann. Cas. 1914A 104, 45 L.R.A. (N.S.) 48; Com. v. Wellford, 114 Va. 372, 76 S.E. 917, 44 L.R.A. (N.S.) 419; Scott, Guardian v. Nelson, Executor, 3 Porter, 452, 29 Am. Dec. 266.
In determining whether or not certain words were used in their technical sense, the court should consider whether the drawer of the will was or was not familiar with the technical meaning of the words or terms used.
40 Cyc., page 1399; Perry v. Bulkley, 82 Conn. 158, 72 A. 1014; Hewitt v. Green, 77 N.J.E. 345, 77 A. 25; In re Bennett, 134 Cal. 320, 66 P. 370; Cross v. Hoch, 149 Mo. 325, 50 S.W. 786; Hamilton v. Richie (Eng.), A.C. 310.
A court in construing a will is not bound to shut its eyes to the state of facts under which the document was made. On the contrary, an investigation of such facts often materially aids in elucidating the scheme of disposition which occupied the mind of the testator. To this end it is obviously essential that the judicial expositor should place himself as fully as possible in the situation of the person whose language he has to interpret, and, guided by the light thus thrown on the testamentary scheme, he may find himself justified in departing from a strict construction of the testator's language without allowing conjectural interpretation to usurp the place of judicial exposition.
Dollander v. Dhaemers, 297 Ill. 274, 130 N.E. 705, 16 A.L.R. 8.
Barbour Henry, and J.G. Holmes, all of Yazoo City, Butler Snow, and W.H. Cox, all of Jackson, and Sennett Conner, of Seminary, for appellee.
Every estate in lands granted, conveyed, or devised, although the words deemed necessary by the common law to transfer an estate of inheritance be not added, shall be deemed a fee-simple if a less estate be not limited by express words, or unless it clearly appear from the conveyance or will that a less estate was intended to be passed thereby.
Section 2112, Code of 1930.
The rule in Shelley's case is abolished.
Section 2114, Code of 1930.
Estates in fee tail are prohibited, and every estate which, but for this statute would be an estate in fee tail, shall be an estate in fee simple.
Section 2117, Code of 1930.
Mrs. Strickland was not a child or descendant of testator, and there is a lapsed legacy.
Section 3553, Code of 1930.
At common law a grant to A and the heirs of his body conveyed a fee conditional. Under the statute de bonis conditionalibus it conveyed a fee tail, but under section 2765, Code of 1906, Hemingway's Code, section 2269 (2117 of the Code of 1930) it conveys a fee simple.
Liberty Bank v. Wilson, 116 Miss. 377.
A legacy and devise lapsed because of the death of the devisee occurred prior to that of the testator.
Where real and personal property is specifically devised to individuals and the devise does not take effect because of the death of the devisee during the lifetime of the testator, the property mentioned in this lapsed devise descends to the heir as property undisposed of by the will.
Marx v. Hale, 131 Miss. 290.
By a bequest of all of my property to Eliza J. Haring, my sister, at her death her heirs are to have it. The sister took a fee simple title on the death of the testator.
Haring v. Flowers, 91 Miss. 242.
Technical words when used in a will should be construed according to their technical meaning, as established by reference to the science or art to which they are peculiar, unless it appears from the will that they were used in a different sense, or unless a different construction is necessary in order to give sense to the will.
28 R.C.L., section 185.
In the construction of a will it is usually presumed that the testator was acquainted with the rules of law, and that he intended to make a valid will.
And in general it may be said that a testator is presumed to have known the legal consequences of his will. The courts will not ordinarily indulge in the presumption that the testator acted without advice or learning in drafting his will.
28 R.C.L. 233.
That such language of the will is clear, explicit and consistent with the testator's natural duties. He shows clearly that he understood the meaning of the word "heir" and intended to use it in its original and legal acceptation clearly embracing petitioner as one of the distributees under the will. And parol testimony is inadmissible to show an intention different from that appearing on the face of the bill.
Love v. Buchanan, 40 Miss. 758.
The proposition deducible from the authorities is that prima facie the word "heir" is to be taken in its technical sense, unless there is in the will a plain demonstration that the testator used it in a different sense, in which case effect will be given to his intention.
Irving v. Newlin, 63 Miss. 192.
Where the testator used the word "heirs" in two clauses of the will, in the latter of which certain persons named as heirs were not legally under that classification, yet in spite of this apparent classification in the testator's mind applying to these particular persons, the court declined to so apply the use of the word "heirs" in the second preceding clause of the will wherein such persons who were not heirs were not set out, and the court construed the word in the legal sense.
Harvey v. Johnson, 111 Miss. 566.
Argued orally by A.M. Pepper, and H.H. Johnson, for appellants.
The appellee, the Delta Investment Company, administrator of the estate of Mrs. Sarah A. Edwards, deceased, filed a petition in the matter of the administration which was pending in the chancery court of Holmes county, to have the will of R.M. Edwards, the late husband of said Mrs. Sarah A. Edwards, construed; all persons in interest having been made parties to the petition. The trial resulted in a decree construing the will, from which appellants prosecute this appeal.
The language in question, which the court was called on to construe, is as follows: "The remainder of the estate to be divided between my brother for his daughter, Annie Mary Edwards, and Mrs. Pearly Strickland and her heirs."
R.M. Edwards was a man of very little education, as the spelling in his will indicates. His will in full is in this language including the spelling:
"I, R.M. Edwards, beaing of sound and disposing mind make publish and declair this my last will and testament makeing the following disposition of my propperty to-wit: — Item 1. I direct that all my just jest depts bea paid Item 2st. I will to my wife Sarah Anne Edwards all of my estate real and percenal Know it is understood that they is One Thousen Seventy Eight acres of Bealon deeded to myself W.J. Edwards. He owes me Four Thousen Dollars on his half know if I dye first I don't want him to pay eny more on his half of the Place I give him whatever that amount is All the live stock and Empliments of every Discripso Is mind except one horce name Noble then at my wifes deth I want the remairend of the Estate to bea devided betwene my Brother for his dorter Annie Mary Edwards Mrs. Pearlley Stricklen and her airs my sister Sarah White to To Have Two Hundred Dollars Joe Edwards children to have Fifty Dollars Larrow Plarce children to have Fifty Dollars to Devide betwene them Know I own 94 3/4 acres of land on the West end of Bealn That is my own land I also own 2 1/2 acres of land. It has a gin plant two Cabins Melas Mill all of this proptiy is mine. Also I al so own a store house lot in Lot 1 in Block 2 with Artishen Well on it I also own my house Lot where I live I also (own) a ensurance policy made to my wife S.A. Edwards I am writeing this will my self These Two Lots here in Thornton I want my wife to have as hir own propity what ever dispecial she makes of them at hir deth shal bea legal if she does not make any dispecial of them at hir deth then for them to go in my estate.
"I R.M. Edwars here a Point R.R. Tucker Executor of this my last Will and Testament Ask that he bea not required to make eny report to any court or to give any bond as such Executor Executed This the 14th day of May, 1918, at Thornton, Miss. (Signed) R.M. Edwards. The folering is the Witness to the A Bove Will. M.L. Pollard. A.W. Gary, K.C. Thomson."
Both R.M. Edwards and his wife died without children or descendants of children; their heirs, therefore, being collateral kin. Mrs. Edwards died intestate. It will be observed that the will was made on the 14th day of May, 1918. Annie Mary Edwards was a niece of the testator, while Mrs. Pearly Strickland was a niece of his wife. At the time of the making of the will, Mrs. Pearly Strickland had four children; and, at the time of her death, which occurred on the 16th of October, 1918, all of them were still living. Her death occurred before the death of R.M. Edwards, the testator. Mrs. Sarah A. Edwards, the wife, died in November, 1928; soon thereafter appellee was appointed administrator of her estate.
The estate of R.M. Edwards consisted of land and personal property. The chancellor held that, under that clause of the will in question, Mrs. Pearly Strickland would have taken one-half of the remainder of the estate of the testator in fee at the death of the latter if she had survived him. But, having died before the testator, the bequest and devise lapsed and became a part of the life estate of his wife, and, on the death of the latter, descended to her heirs, under the law of descent and distribution.
To repeat, the question is: What did the testator mean by this language in the will: "The remainder of the estate to be divided between my brother, for his daughter, Annie Mary Edwards, and Mrs. Pearly Strickland and her heirs?" Was it a bequest and devise of one-half of the remainder of his estate to Mrs. Strickland in fee, or to her and her four children, share and share alike, in fee? Appellants, the children of Mrs. Strickland, contend that the latter is the correct construction of the will, and that therefore, on the death of the testator, they (there being four of them) each took a one-fifth undivided interest in one-half of the remainder of the testator's estate, their mother's one-fifth undivided interest having lapsed and gone back to the estate because of the fact that she died before the testator. The court recited in its decree that the terms of the will were plain and unambiguous and that the language "her heirs," used in the will, were used in their common-law significance.
Having that view, the chancellor ruled out parol evidence offered by the appellants for the purpose of showing that the intention of the testator in using the words "and her heirs" was to bequeath and devise an estate in fee to the children of Mrs. Strickland. We have reached a contrary conclusion, upon the following considerations: If the terms of a will are plain and unambiguous, taking the whole instrument into consideration, the court will give them their legal significance; but if, on an examination of the entire will, the testator's meaning is doubtful, the facts and circumstances surrounding the testator at the time of making the will, and his relation to the parties in interest, will be looked to, to determine whether the terms in question were used in their legal sense; and extrinsic evidence is admissible to clear up the ambiguity, including such evidence of the fact that the will was written by the testator himself, and that he was ignorant and inexperienced in such matters. In determining whether or not certain words are used in their technical sense, the court should consider whether the drawer of the will was or was not familiar with the technical meaning of the words or terms used. It is a matter of common knowledge that the terms "heir" and "children" in a popular sense have the same significance, often being used interchangeably. Where a consideration of the whole will renders it uncertain as to whether the testator intended to use the term "heirs" as meaning children extrinsic evidence is admissible for the purpose of clearing up the ambiguity. Byrd v. Henderson, 139 Miss. 140, 104 So. 100; 28 R.C.L., page 224, sec. 185; 40 Cyc. 1399. In construing a will, the court is not bound to shut its eyes to the state of facts and circumstances under which the instrument was made. On the contrary, investigation of such facts and circumstances often materially aids in elucidating the scheme which the testator had in mind. To this end it is obviously essential that the court, in construing a will, should be placed as fully as possible in the situation of the testator whose language is to be interpreted.
Another principle of construction is that the use of different words in a will applying to the same subject-matter indicates that the testator had in view different results. Williams v. Fundingsland, 74 Colo. 315, 221 P. 1084, 63 A.L.R. 77.
Now, applying these principles to the will here involved: It will be noted that the testator provides that his niece, Annie Mary Edwards, should have one-half of the remainder of his estate, and made no reference to her heirs; while he provides that his wife's niece, Mrs. Strickland, and her heirs, should have the other half, to be divided between them. At the time of the making of the will, his niece, Annie Mary Edwards, was single and without children, while, as stated, Mrs. Strickland had four children. If the testator intended to use the words "her heirs" as words of inheritance, and not as words of purchase, we see no reason why he did not use the same terms in reference to the estate to be taken by his niece, Annie Mary Edwards. And, furthermore, the word "divided" cannot be left out of view. The will provides that the share of Mrs. Strickland is to be divided between her and her heirs.
Under section 2112 of the Code of 1930, words of inheritance in a conveyance or devise of land are not necessary. A conveyance or devise of land without words of inheritance vests a fee-simple title. To illustrate: A conveyance or devise of land by A. to B. and the heirs of B, vests in B a fee-simple title; and also a conveyance or devise of land by A to B without the use of the words "and his heirs" vests fee-simple title in B.
We are of opinion that the clause of the will here in question is uncertain and ambiguous in meaning, because of the use of the word "divided" in connection with the words "and her heirs," after the name of Mrs. Strickland, and the failure to use the words "and her heirs" after the name of Annie Mary Edwards, and that this ambiguity is not cleared up by a consideration of the whole will, and that the court was therefore in error in excluding any pertinent evidence offered by appellants as to facts and circumstances surrounding the testator at the time of the making of the will, including his relationship to the parties in interest.
Reversed and remanded.