101 So. 849 (Miss. 1924), 24899, Woessner v. Smith

Docket Nº:24899
Citation:101 So. 849, 136 Miss. 894
Opinion Judge:HOLDEN, J.
Party Name:WOESSNER et al. v. SMITH et al. [*]
Attorney:Pollard & Hamner, for appellants. Gardner, Odom & Gardner, for appellee. W. M. Whittington, for appellees. Pollard & Hamner, in reply for appellants. Argued orally by R. V. Pollard, for appellant, and W. M. Whittington, for appellee.
Case Date:December 01, 1924
Court:Supreme Court of Mississippi
 
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Page 849

101 So. 849 (Miss. 1924)

136 Miss. 894

WOESSNER et al.

v.

SMITH et al. [*]

No. 24899

Supreme Court of Mississippi

December 1, 1924

Division A

Suggestion of Error Overruled Dec. 22, 1924.

APPEAL, from chancery court of Leflore county, HON. C. L. LOMAX, Chancellor.

Suit between William Woessner and others and Mrs. Hattie Lee Smith and others. From the decree rendered, the former appeal. Affirmed.

Decree affirmed.

Pollard & Hamner, for appellants.

We understand the rule to be that the intent of a testator is to be gathered from a reading of the whole will and that every part of a will is to be enforced where it is possible to do so. We, also, understand that plain and unambiguous clauses of a will are to be respected by the courts and enforced as written. The court is not called upon to make a will but to construe it and then enforce it without regard to whether it might seem just or unjust [136 Miss. 895] and without regard to the effect of conditions which may have arisen after the death of the testator.

Obergfell appointed his wife executrix without bond and provided no security, and an insufficient amount of property, for the payment of the legacies to his own nephews and nieces, and, unless the court gives the plain and ordinary meaning to the clause "It is my further will that said legacies are hereby made a charge on my estate," then the nephews and nieces of the testator will go without taking the gifts which their Uncle John intended they should have when he wrote his will. The language of the clause of the will providing security for the legacies is perfectly plain.

We contend that the plain and ordinary meaning of the words used in the will shows that the legacies were a charge on the estate. The testator was dealing directly with the legacies when he used the language: "It is my further will that said legacies are hereby made a charge on my estate." Suppose the testator had wanted to charge these legacies in favor of his nephews and nieces against all of his property, what plainer or stronger language could he have used? The testator had just finished itemizing the legacies he wanted paid and concluded the article of his will by providing in apt language that they "are hereby made a charge on my estate." The word "estate" when used in reference to the property of a decedent means all his property, and it was used here in that sense. Andrews v. Broomfield, 32 Miss. 107. It is well settled in Mississippi that legacies may be charged against lands specifically devised and that the charge may be made as well by implication as by specific direction in a will. Stuart v. Robinson, 80 Miss. 290; Estate Maria Barbara Lutz, Deceased, 50 L. R. A. 847.

Crossett v. Clements, 7 So. 207, holds that a will is to be enforced according to its terms, if legal, regardless of any hardship that may have arisen because of changed [136 Miss. 896] conditions subsequent to the execution of the will. Elliott v. Topp, 63 Miss. 142. "In seeking for the intention, 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. Vannerson v. Culbertson, 10 S. & M. 150." Harvey v. Johnson, 111 Miss. 566; Currie v. Murphy, 35 Miss. 473; Wallace v. Wallace, 114 Miss. 591.

Gardner, Odom & Gardner, for appellee.

The word "legacy" ordinarily means a gift of personal property, and does not include real estate, unless something in the will shows that such was the intention of the testator. 1 Underhill on Wills, sec. 319. The rule that the testator's intention is only to be ascertained from the language of the will as he leaves it, must be taken with this qualification, that the courts are, within certain limits, at liberty to mould its language into such shape as will, upon the whole, best show its intention. The power of reforming the language of the will has been liberally exerted, and the present tendency is to extend its operation. Whether this tendency is to be encouraged is for the courts to determine. 1 Underhill on Wills, sec. 356.

The rule that of two apparently repugnant clauses the former ought to be rejected as having been revoked by the latter is regarded and applied with caution. In order that it shall apply at all, it must clearly appear that the two clauses are in fact, as well as apparently, repugnant and irreconcilable. The rule, so far as it involves rejecting any part of the will, is not to be invoked lightly or without any good reason. . . . Every possible effort should be made by the court to reconcile the clauses seemingly repugnant, and to give effect to the whole will; for the presumption is that the testator meant something by [136 Miss. 897] every sentence and word in his will, and no court is justified in rejecting any portion of it until it is positively assured that the portion which it rejects cannot be reconciled with the general intention of the testator as expressed in some other portion of the will. 1 Underhill on Wills, sec. 359; 50 Miss. 15; 94 Miss. 293.

It is a very well established rule of construction that words and clauses, and even whole paragraphs, otherwise insensible, may be transposed in construing a will, if by so doing the intention of the testator is...

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