Harvey v. Johnson

• Decision Date: 22 May 1916
• Citation: 71 So. 824,111 Miss. 566
• Court: Mississippi Supreme Court
• Parties: HARVEY ET AL. v. JOHNSON ET AL

71 So. 824

111 Miss. 566

HARVEY ET AL. v. JOHNSON ET AL

Supreme Court of Mississippi

May 22, 1916

March 1916

APPEAL from the chancery court of Oktibbeha county, HON. J. Q ROBINS, Chancellor.

Petition by W. H. Reynolds, executor of the will of Mary Martha Wiggs deceased, for construction of the will in which proceeding Marguret Johnson and others were parties. From a decree constructing the will, Wm. Henry Harvey appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

Green & Green, for appellant.

W. W. Magruder, for appellees.

OPINION

SYKES, J.

This is an appeal from the decree of the chancery court of Oktibbeha county construing the last will and testament of Mrs. M. M. Wiggs. The will reads:

"Starkville, Miss., July 29th, 1910.

"I, Mary Martha Wiggs, being of sound and disposing mind, and having in view the uncertainty of life, do make, publish and declare this my last will and testament.

"1st. I give my husband, Capt. J. A. Wiggs, the land known as my home place upon which I now reside, to have and to hold for his natural lifetime, and at his death same to be equally divided among my legal heirs.

"2nd. I give to my heirs the following described property, to wit: The land known as my Chapel Hill place, the land known as my Outlaw place, and all my personal and mixed property to be divided as follows: One share to the children of my sister, Margaret Spencer, one share to the children of my sister Ella Harvey, and one share to be equally divided between my brother Dorsey Outlaw and his children.

"3rd. All cash on hand at the time of my death to be used to defray my funeral expenses and balance to be devoted to the purchase of a monument each for myself and my mother.

"4th. I appoint Mr. W. H. Reynolds the executor of my will, and direct that he be not required to give any bond or any kind of security.

"[Signed]

MARY M. WIGGS.

"Signed in our presence and declared by signers as her will and we sign in her presence.

"[Signed]

J. A. CAROTHERS.

"C. E. GAY."

This will was construed by the learned chancellor upon the petition of the executor, W. H. Reynolds, and this appeal is only from the construction of item 1. The will was made on July 29, 1910, and Mrs. Wiggs died on or about June 10, 1913, or about two years and eleven months after making the will. In item 1 of the will she devised the land known as her home place, which was decidedly the most valuable real estate owned by her, to her husband, Capt. J. A. Wiggs, for life. Capt. Wiggs departed this life before the testatrix; therefore at the time of her death there was no life estate in the property devised in this item, and it vested at once in her "legal heirs."

The question relating to this item is whether or not, when considered independently of the other items of the will, the intention of the testatrix is perfectly plain from a consideration of this item alone; and, second, whether or not, when considered with the other items of the will, the words "legal heirs," as used in item 1, is governed by those named as her heirs in item 2. In other words, the first question to be decided by this court is whether or not the legal heirs of Mrs. Wiggs mentioned in item 1 are her legal heirs, as is contemplated by section 1649 of the Code of 1906, or whether by the devises and bequests of item 2 those named as purporting to be her heirs in item 2 are decisive of and govern those who are her legal heirs in item 1. When considered alone, we have no hesitancy in saying that item 1 is perfectly plain and meant to devise the land known as her home place to her legal heirs as contemplated by said section of the Code above named, and that it was her intention clearly expressed in this item of the will that these heirs take accordingly to the statute, namely, per stirpes, her living brother, Dorsey Outlaw, taking a one-third undivided interest in her home place, and the children of her sister Ella Harvey receiving an undivided one-third interest to be equally divided among them, and the children of her sister Margaret Spencer likewise receiving an undivided one-third interest to be equally divided among them.

In item 2, however, of this will she devises and bequeaths to her heirs certain real and personal property, and then names as her heirs the children of her sisters, Margaret Spencer and Ella Harvey, and her brother, Dorsey Outlaw, and his children. All of these are the heirs of Mrs. Wiggs, except the three children of Dorsey Outlaw, who, of course, are not heirs. The question then is: Shall the court construe item 1, which is perfectly plain and unambiguous when considered alone, and give to the meaning of "legal heirs" the same meaning as the testatrix apparently gives to the word "heirs" in item 2? The learned chancellor below in a very lucid and clear opinion so held, and it is only after a most careful consideration and examination of authorities that we are constrained to differ with him. The court recognizes that the testatrix was not learned in the law, and, while to those learned in the law the terms "heirs" and "legal heirs" have practically the same significance, at the same time, in gathering the intention of the testatrix from the entire will considered as a whole, we believe that she meant to use the term "legal heirs" in a different manner in item 1 than she used the term "heirs" in item 2. This contention is borne out by the fact that she was devising different plantations and also different estates therein, and in item 2 was devising both real and personal property to vest immediately, while in item 1 she was devising only real property, first a life estate therein, and then a remainder in fee in her "legal heirs." We believe that the true interpretation of item 2, when considered in connection with item 1, is that Mrs. Wiggs was rather doubtful as to who her heirs might be, and that, in order to put the property devised in item 2 beyond all question, she expressly named those whom she wanted to have this property specifically. The word "heirs" in item 2 can very well be treated as surplusage.

By item 1, when considered either independently or together with the other items of the will, we think it perfectly manifest that she meant to devise this property according to the laws of descent of the state of Mississippi. The learned chancellor in his opinion, while holding that the intention of the testatrix as expressed in item 1, when considered alone was perfectly manifest and free from doubt, yet held that item 2 which incorrectly named certain people as her heirs, should control and govern the term "legal heirs" in item 1. In this we cannot agree with him. We do not think that an...