Wallace v. Wallace

• Citation: 114 Miss. 591,75 So. 449
• Decision Date: 21 May 1917
• Docket Number: 19245
• Court: Mississippi Supreme Court
• Parties: WALLACE ET AL. v. WALLACE

75 So. 449

114 Miss. 591

WALLACE ET AL. v. WALLACE

No. 19245

Supreme Court of Mississippi

May 21, 1917

Division A

APPEAL from the chancery court of Tate county, HON. J. G. MCGOWAN Chancellor.

Suit by R. G. Wallace and others against J. P. Wallace. From a decree for defendant, plaintiff appeals.

Appellants were complainants in the court below, and appellee was defendant. The suit involves the construction of the following will:

Will of James Monroe Wallace.

In the name of God; Amen: I, J. M. Wallace, of Panola county and state of Mississippi being of sound mind, memory and understanding do make this my last will and testament in manner and form following:

1st. I will devise and bequeath to the children of my deceased brother, viz.:--Caroline A. Wallace and Virginia L. Wallace and Cornelia Estes and to the heirs of their body, the southeast quarter of section thirty-one (S. E. 1/4 Sec. 31) town. (6) six, range seven (R. 7) and the northwest quarter of section six (N.W. 1/4 Sec. 6) town, range seven (T. 7, R 7) in Panola County and state of Mississippi.

2d. I will, devise and bequeath to John P. Wallace, son of my deceased brother John P. Wallace and to the heirs of his body, section five (Sec. 5) town, seven (T. 7) range seven (R. 7) on which I reside and the northeast quarter of section six (N. E. 1/4 S. 6) town seven (T. 7) range seven (R. 7) in Panola county, and state of Mississippi; also an undivided one-half interest in the following described lands viz.:--Section two and eleven sec. (2 & 11) and the east half of the east half of section ten (E. 1/2 of E. 1/2 Sec. 10) and the half of the half of southeast quarter of section three (1/2 of 1/2 of S. E. 1/4 of sec. 3) and fractions of southwest quarter of section 12 and northwest quarter of section thirteen (Frac's S.W. 1/4 of Sec. 12 & N.W. 1/4 Sec. 13) and half of northeast quarter of section 14 and frac. of southeast quarter of section fourteen (1/2 of N. E 1/4 Sec. 14 and frac. S. E. 1/4 Sec. 14). All the above described lands being in Tunica and Tate counties, state of Mississippi, in township six (T. 6) range ten (R. 10 W.) and to which I previously deeded to said John P. Wallace an undivided one-half interest.

3d. I will, devise and bequeath to the children of my deceased brother Wm. M. Wallace viz.: Jeanette Wallace, James C. Wallace, Winter C. Wallace and Ida G. Gop and to the heirs of their bodies, the south half of section six (S. 1/2 sec. 6) town, seven, range seven, and the east half of section one (E. 1/2 Sec. 1) town seven, range eight. Exhibit A -- (Copy.) (T. 7 R. S.) in Panola county and state of Mississippi.

4th. I will, devise and bequeath to Medara Duncan, daughter of my deceased sister, Caroline Rich, fifteen hundred dollars, which is given instead of any land as given above to my other nephews and nieces.

5th. I will, devise and bequeath to my nephew John P. Wallace all my household, table and kitchen furniture, and to nieces Caroline and Virginia Wallace the oil portraits of my wife and self.

6th. I will, to my namesake J. M. Wallace son of John P. Wallace, my gold watch chain and pencil and to my namesake J. M. Wallace, son of Jeanette Wallace, a gold watch and chain worth $ 175 and to my namesake Monroe Wallace Wesson, son of my old friend I. G. Wesson, a gold watch worth. $ 150.

7th. After payment of my just debts and special legacies as before devised, I will and direct that my executors hereinafter named shall sell all other property real and personal, that I may die possessed of and collect whatever notes or accounts may be due me, and divide the proceeds, together with what money I may have on hand, equally between each nephew and niece hereinbefore named, share and share alike. Each taking per capita; and should any nephew or niece have died, leaving a child or children such child or children shall take the part their parent if living would be entitled to, and each nephew or niece shall account for whatever advance of money I may have loaned them with the interest thereon.

8th and lastly. I appoint my nephew John P. Wallace and my niece Caroline A. Wallace executor and executrix of this ray last will and testament, not releasing and intending to release them by this appointment from any indebtedness due me. No security shall be required of them as executors, neither shall they charge for services beyond necessary costs and expenses.

Signed, sealed and declared to be the last will and testament of J. M. Wallace, this the seventh day of July, 1893.

[Signed]

J. M. WALLACE.

[Seal.]

In the presence of O. D SLEDGE,

J. B. SMITH,

J. T. SLEDGE.

Decree affirmed.

Holmes & Sledge, for appellant.

Code of 1906 (sec. 2448, Code of 1892 and sec. 1203,

This case involves the construction of section 2778, Code of 1880.) It also has a special reference to section 2764, Code of 1906 (sec. 2435, Code of 1892) by which section we see that although the Code of 1892, by which section we see that 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 2765, Code of 1906 (sec. 2436, Code of 1892.) Prohibits estates in fee tail; and every estate which, but for this statute, would be an estate in fee tail, shall be an estate in fee simple; but any person may make a conveyance or a devise of lands to a succession of donees then living, not exceeding two, and to the heirs of the body of the remainderman and, in default thereof, to the right heirs of the body of the remainderman, and in default thereof, to the right heirs of the donor, in fee simple.

By section 2776, Code of 1906, (sec. 2446, Code of 1892), we see that a devise to one for life, with remainder to his heirs or heirs of his body, shall be held to create an estate for life in such person, with remainder to his heirs or heirs of his body, who shall take as purchasers, by virtue of the remainder so limited to them.

In the devise before the court the following language, is used: "I will devise and bequeath to John P. Wallace, and to the heirs of his body." Testator did not say in the language of section 2776, to John P. Wallace for life with remainder to the heirs of his body, but we take it that the language used is so plain that this the only construction that could be put upon it and judging from the instrument itself, this was the evident intention of the testator and we must remember that as this court has well said in Crosset v. Clements, 7 So. 207; Davenport v. Collins, 96 Miss. 716, 51 So. 549, 40 Miss. 729, and many other cases that the intention of the testator is the "polar star" for guidance in the interpretation, and the intention is the prime object to ascertain. After the intention of the testator has been determined, then the rules of law will be applied to this intent.

The intent of the testator in the case at bar is very plain, and we find but little difficulty in at once reaching the conclusion that it was the intention of the testator, that J. P. Wallace should take a life estate in the lands devised, and at his death the heirs of his body should take the remainder in fee, and that those who survive John P. Wallace and were in being at the time of his death would take the remainder in fee.

Section 2778 of the Code of 1906 above referred to enlarges the question of heirship, or rather limits the class, by making any child born to him within ten months after his death, "heirs of his body." In order to make ourselves plain, as to the views we take of this matter let us look into the history for just a moment of our statute, with reference to fee tails and limitations of estates as well as the rule in Shelly's case.

Under the common law the rule of construction was to defeat the intention of the testator if the estate devised was a succession of donees indefinite in number, and to so construe devises where they were given to a class in succession so that the first taker would take the fee, regardless of the intention of the testator and the only way a testator could meet this common-law rule of construction was to limit by definite and certain language, the class to whom he gave his property, and if one of the class should die and that class was made to depend upon survivorship then the contingent limitations would fail. To illustrate, as well said by this court in Middlesex Banking Company v. Field, 84 Miss. 646, 37 So. 139 'A' devises Blackacre to 'B' and the heirs of his body, and if 'B' dies without issue, etc., over to 'C' and his heirs. The intention of the devisor is to create an estate tail, and he meant the property to go to the heirs of B's body as long as there were any. The construction put on the words "die without issue" by the courts was in the line of this intention, to wit: that they meant not only issue of B living at B's death, but any issue of B's grandson, great grandson, etc., as long as any decedents of B were living; and hence that there were two contingencies, on the happening of either of which the limitation to C should take effect, to wit: failure of B's death and second, failure of B's issue at any time in the future. The contingency was uncertain and indefinite and it might never fail; and hence that the limitation to C was not to take effect until B's descendants ultimately at an indefinite time failed. The court thus construing the words, of course gave B an estate tail, and this he could bar, and acquire a fee-simple and sell the lands and his heirs would not take what the devisor meant; and this resulted in a defeat of devisor's intention.

By section 2776, Code...