Opinion
No. 34003.
January 22, 1940.
1. WILLS.
Under will providing that testator's property should be divided equally between testator's four daughters and his grandson, and codicil providing that grandson should receive only one-half of what each of testator's daughters should receive, grandson was entitled to only one-half of the amount that each one of the daughters inherited.
2. WILLS.
The language of will providing that testator's property should be divided equally between testator's four daughters and testator's grandson, and codicil providing, that grandson should receive only one-half of what each of testator's daughters should receive, was so plain as not to need testimony to show what the testator meant.
APPEAL from the chancery court of Tate county; HON. L.A. SMITH, SR., Chancellor.
R.F.B. Logan, of Hernando, for appellant.
The court erred in holding that by the use of the following words, to-wit: "It is my will that the attached will made by me September 24, 1929, is to be carried out except one change, and this change is to the effect that Leonard Wheeler, my grandson, is to receive only half of what each of my daughters, Mattie, Mildred, Katie and Floy receive from my estate," the testator intended for each of his said daughters to receive 2/9 of the whole estate and the said Leonard Wheeler to receive 1/9 of the whole estate.
The intention of the testator must be ascertained from the language in the will and codicil and must be carried into effect, if not inconsistent with the rules of law. In seeking for the intention, words in a will and codicil are to be taken in their ordinary and grammatical sense, unless a clear intention to use them in another can be collected. When there is no ambiguity in the words there is no room for interpretation.
The court erred in holding that by the codicil to testator's will in the following words, to-wit: "It is my will that the attached will made by me September 24, 1929 is to be carried out except one change, and this change is to the effect that Leonard Wheeler, my grand-son, is to receive only half of what each of my daughters, Mattie, Mildred, Katie, and Floy receive from my estate", the intention of the testator was to give to his grandson only half as much as any one of his daughters would receive under the will.
The court erred in holding that the intention of the testator, by the will and codicil, was to give to his grand-son, Leonard Wheeler, only half as much as any one of his daughters would receive under the will. We respectfully insist that there is nothing in the will nor codicil, nor in the will and codicil, showing that it was the intention of the testator to give his grandson Leonard Wheeler only half as much as any one of his daughters would receive under the will.
In order for this construction to stand up, it seems to the writer that the court will have to strike out of the codicil the following words: "That Leonard Wheeler, my grandson, is to receive only half of what each of my daughters, Mattie, Mildred, Katie and Floy receive from my estate" and insert therein: "That I give to my grandson only half as much as any one of my daughters receive under my will", and, of course, the court cannot do this.
Welch v. Welch, 147 Miss. 728; Patterson v. Patterson, 150 Miss. 179; Harvey v. Johnson, 111 Miss. 566.
In seeking for the intention of the testator, words are to be taken in their ordinary and grammatical sense, unless a clear intention to use them in another can be collected. When there is no ambiguity in the words, there is no room for interpretation.
Ehrman v. Hoskins, 67 Miss. 192; Vennerson v. Culbertson, 10 S. M. 150; Harvey v. Johnston, 111 Miss. 566; Currie Naylor, Exrs. of Jacob Odom, v. Murphy et al., 35 Miss. 473.
The word "only" is a restriction, or exclusion, and the word "each" means every one of any number separately considered or every one of several.
29 Cyc. 1491; Wynn, Administrator, v. Bartlett et al., 167 Mass. 292; Homer v. Chicago, etc., R. Co., 38 Wisc. 165-175; Robinson, Administrator, v. Ocean Steam Navigation Co., 2 L.R.A. 636; Hopper, Respt., v. Hopper, Exrx., etc., 12 L.R.A. 237; 14 Cyc. 1129, 1130; Martin v. Mercer University, 98 Ga. 320, 326, 25 S.E. 522; Auger v. Tatham, 191 Ill. 296, 303; 61 N.E. 77; In re Penny, 159 Pa. St. 346, 349; 28 A. 255.
The codicil no where enlarges the gift to the daughters, and the gift to the grandson in the will, being by the codicil revoked by implication, the writer is of the opinion that the testator died intestate as to that portion of the estate given to the grandson under the will.
Dealy v. Keatts, 157 Miss. 412; Jones et al. v. Carey, 122 Miss. 244.
Is there any more reason why the testator in his will should give each of his four daughters twice as much as he gave his grandson than that he should give his grandson one-half of what each of his daughters receive out of his estate? I think not. There is no law against his doing this; and he had a right under the law to dispose of his property as he wanted to, so long as he did not violate the law in doing so; and the construction that the grandson is to receive only half of what each of the daughters, Mattie, Mildred, Katie, and Floy, receive out of his estate is not in violation of law, and is exactly what he said.
Sturm v. Sawyer, 2 Pa. Sup. Ct. 254, 257; Hatton v. Finch, 4 Beav. 186.
The appellant respectfully insists that the lower court should be reversed; that this court fix the interests of the parties hereto in the estate of Mr. J.C. Moore; and remand the cause to the lower court for the estate to be wound up in accordance with the opinion of this court.
Holmes Bowdre, of Hernando, for appellees.
Appellees invoke the benefit of the statutory power conferred upon every person twenty-one years of age, of sound and disposing mind to make a last will and testament, or codicil, in writing, so as to devise and bequeath any and all property.
Sec. 3550, Code of 1930.
The codicil must be construed as part of the will, it being an addition or supplement to the will.
Joyner v. Joyner, 117 Miss. 507.
It is the office of the court to discover the will of the testator, and it being found, if lawful, to effectuate it. The construction must be such, if possible, to avoid intestacy in whole or in part.
Leigh v. Harrison, 69 Miss. 938; Hale v. Melson, 112 Miss. 291.
If there is no ambiguity on the face of the will, as to the intent of the testator, then the chancellor held correctly in refusing to admit parol testimony. But if there is an uncertainty as to the testator's intent, then parol evidence is admissible of what he meant by the language used.
No one is better qualified to know the meaning of the words used in the will than the testator himself. His reason for making this codicil were good and satisfactory to him, and he was only exercising his rights, when he reduced the amount of his estate that his grandson should receive. However, we respectfully submit that the chancellor's conclusions reached in this matter were correct, and that the legal effect of the chancellor's decree is to effectuate the real intention of the testator as expressed in the words of the codicil. In other words, there is no need to resort to outside evidence.
The English language is wonderful. There is a meaning in words. The word "only" has a variety of meanings. In Webster's unabridged dictionary the word "only," when used as an adverb, signifies "nothing more or other than." Applying it in this case, it is used as a measure of quantity. Its usual meaning is restricting rather than enlarging. It is inconceivable that the testator would intend to enlarge the amount to be received by his grandson, when it is preceded by the word "only." It cannot be contended with any show of reason that the testator meant that his grandson should receive only half of the amount that his four daughters were to receive and therefore that he should receive half of the whole state. The word "what" is also defined by Webster as meaning "as much as," and in that sense it is a measure of proportion, rather than of quantity. If Leonard Wheeler received half of the whole estate, then he would have received four times as much as each daughter received.
There is no way to accomplish and effect the intention of the testator other than that Leonard should receive one-ninth, and each of the four daughters two-ninths each of the testator's estate.
Thereby Leonard receives one-half as much as each daughter, and each daughter receives twice as much as Leonard.
Argued orally by R.F.B. Logan, for appellant, and by F.C. Holmes, for appellee.
This is an appeal from a decree construing the will and codicil of J.C. Moore, deceased, which will reads as follows:
"I give and bequeath my estate, both personal and real, as follows:
"I give and bequeath to my wife, Susan Moore, my home situated in Tate County, Mississippi, and all contents of said home; land and appurtenances thereto during her lifetime, and at her death to be sold and divided equally between my four daughters and my grand-son Leonard Wheeler.
"I also give and bequeath to my wife, Susan Moore, Two thousand and no/100 — Dollars in cash.
"I also give and bequeath 124 1/2 acres of land situated in DeSoto County, Mississippi — to my four daughters and grand-son, Leonard Wheeler. This land to be sold and divided equally between them.
"After all my debts are paid I give and bequeath the residue of my estate, consisting of cash and securities divided equally — between my four daughters, and grand-son, Leonard Wheeler.
"I appoint as Executor, R.A. Dalehite, and my wife, Susan Moore, without bond.
"This the 28th day of Sept. 1929.
"(Signed) J.C. Moore."
"Witnesses: "E.B. Mosby "J.L. Christy
The will was also acknowledged before a notary public.
Thereafter, on November 14, 1932, the following codicil was added to the will and duly witnessed, which codicil reads as follows:
"It is my will that the attached will made by me Sept. 24 — 1929 is to be carried out, except one change, and this change is to the effect, that Leonard Wheeler my grand son is to receive only half of what each of my daughters Mattie, Mildred, Katie and Floy receive from my estate.
"(Signed) J.C. Moore." "Witness "S.D. Wooten "E.C. Turley.
The question for determination here is what interest the appellant, Leonard Wheeler, a grandson of the testator, took under the will. On the final hearing, the chancellor held that the will and codicil were not ambiguous, excluding the testimony of appellant that had been taken on the hearing, and that the appellant took only a half interest of a daughter under the will. In the original will, Wheeler and the several daughters took an equal interest. Prior to the construction of the will by the chancellor, the wife of the testator, J.C. Moore, died, and the land given to the wife during her lifetime, in accordance with the will and codicil thereto, became subject to division among the daughters and the grand-son.
We think the chancellor's finding is correct in the construction of the will and codicil, and that Leonard Wheeler, the grandson, is entitled, under the will and codicil, to only one-half of the amount that one of the daughters inherited; and we think that the language of the codicil "that Leonard Wheeler my grandson is to receive only half of what each of my daughters Mattie, Mildred, Katie and Floy receive from my estate", clearly means that the grandson was to receive one-half of the interest he would have originally received under the will without the codicil.
The proof taken by the chancellor on the hearing, which was excluded, fully sustained the purpose of the testator in leaving this amount to his grandson, and we think the language used in the will and codicil is so plain as not to need testimony to show what the testator meant.
The decree of the court below will be affirmed.
Affirmed.