Woessner v. Smith

• Citation: 136 Miss. 894,101 So. 849
• Decision Date: 01 December 1924
• Docket Number: 24899
• Court: United States State Supreme Court of Mississippi
• Parties: WOESSNER et al. v. SMITH et al. [*]

101 So. 849

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 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 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 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 to be ascertained and will carried out. It has often been repeated in the course of this work that the intention of the testator is to be ascertained from the whole will; and, such being a cardinal rule of construction, the local position in the will of any particular phrase or clause is not very material. 1 Underhill on Wills, sec. 362, pp. 495, 496, 497; R. C. L. 28, p. 225; 27 A. S. R. 487; Ann. Cas. 1915C, p. 336; 36 L. R. A. (N. S.) 618; 134 A. S. R. 1088; 138 A. S. R. 659; 40 Cyc. pp. 1383, 1386, 1387, 1392, 1393, 1399, 1400. The object of construing a will is to ascertain the intention of testator, to be gathered from the whole will construed in the light of the surrounding circumstances.--(1912) Henry v. Henderson, 103 Miss. 48, 60 So. 33; (1914) Chrisman v. Bryant, 108 Miss. 311, 80 So. 779; 5 Miss. Dig. 804; Brickell v. Lightcap, 115 Miss. 417, 76 So. 489; Harvey v. Johnson, 111 Miss. 566, 71 So. 824; Schlater v. Lee, 117 Miss. 701, 78 So. 700.

W. M. Whittington, for appellees.

We have no fault to find with the definition of the word "estate." It is clear from the will in this case what the testator meant when he used this word. It is held that a direction for the payment of legacies out of the testator's "estate," or a provision that the executor should realize such part of his "estate" as he shall deem proper for the payment of the legacies, will not charge the legacies upon the land, even though the land is undisposed of by the will, much less upon land specifically devised. 40 Cyc. 2023; Swift v. Edson, 5 Conn. 531; Brookhart v. Small, 7 Watts & S. (Pa.) 229; 40 Cyc. 2023, note 90. The use of the word "estate" in Item 4, and the fact that the term "estate" usually means personal property, but is broad enough to include both real and personal property, makes its use in sec. 4 ambiguous. The surroundings of the testator, the dependency of his widow and children will be considered in determining whether lands are charged with pecuniary legacies, and in arriving at the intention of the testator, it becomes necessary to ascertain the condition of the estate at the time of the making of the will. Stuart v. Robinson, 80 Miss. 290.

The intent of the testator must control. It is the pole star in the construction of wills. The courts will look through the language and sometimes through the inaccuracies of lawyers in examining wills and construe the whole instrument to effectuate the intent of the testator. Joiner v. Joiner, 117 Miss. 507, 78 So. 369. The court will not favor an interpretation that revokes a devise once given. 1 Underhill on Wills, p. 342; Joiner v. Joiner, 117 Miss. 507, 78 So. 369.

As a general rule, the real estate is not chargeable with the payment of pecuniary legacies unless the intention of the testator to so charge it is clearly expressed. Knitts v. Bailey, 54 Miss. 235. Specific devises of land do not share with specific bequests of personalty in contribution towards the payment of the debts of the estate. Gordon v. James, 86 Miss. 752, 39 So. 18. A general purpose to charge both land and personalty with the payment of the debts and legacies will be inferred from the fact that the testator blends his real and personal estate. Cady v. Cady, 67 Miss. 425. A legacy is not a charge upon land unless expressly declared to be so or unless an intent to make it a charge may be inferred from the whole will. Montgomery v. McElroy, 38 Am. Dec. 771; Newsom v. Thornton, 82 Ala. 402; 60 A. R. 743; 40 Cyc. 2035; 40 Cyc. 2026; 40 Cyc. 2028; 40 Cyc. 2030; 40 Cyc. 2033.

The intent to charge legacies upon lands cannot be inferred, and the burden of establishing the legacies to be charged upon the real estate is upon the legatee. Brill v. Wright, 112 N.Y. 129, 8 A. S. R. 717; Hailey v. McLaurin, 112 Miss. 705, 73 So. 727. Where a testator devises both real and personal estate to a residuary legatee, making no discrimination between the two classes of property but massing the two together as a whole, the realty like the personalty is charged with the payment of prior pecuniary legacies. Heatherington v. Lewenberg, 61 Miss. 372; Lusby v. Cobb, 80 Miss. 715.

If the lands charged with the payment of legacies by the will; if the residuary estate and the personal estate charged by law with the payment of legacies has been lost, it by no means follows that lands specifically devised will be charged with the payment of legacies. The legacies will lapse or abate in such event. 2 Alexander on Wills, pp. 1035, 1157, 1160; 1 Schouler on Wills, secs....