Allen v. Howard

• Decision Date: 25 March 1946
• Docket Number: 36017.
• Citation: 25 So.2d 325,199 Miss. 839
• Court: Mississippi Supreme Court
• Parties: ALLEN v. HOWARD.

25 So.2d 325

199 Miss. 839

ALLEN v. HOWARD.

No. 36017.

Supreme Court of Mississippi

March 25, 1946

Brewer & Sisson, of Clarksdale, and L. E Farley, of Memphis, Tenn., for appellant.

Dulaney & Bell, of Tunica, for appellee.

SYDNEY SMITH, Chief Justice.

In September 1929, Mrs. Clemmie T. Knight, who was then domiciled in the State of Tennessee, made a will containing a number of devises and bequests, among which were the following items:

'Item XI. I hereby give, devise and bequeath what is known as the Glover Plantation in DeSoto County, Mississippi, containing 2216 acres, more or less, and all personal property located on same to Kate Nash Torian. If the said Kate Nash Torian should die without heirs of her body living at the time of her death, then the property herein devised shall vest in Jean Amis, Julia Ann, eldest grand-daughter of Lee McLennan, Winfield Wilson, Qanita Williamson and Clemmie L. Howard.'

'Item XIII. I hereby give, devise and bequeath to Willie Woodson Gaither and Margaret Sangster Roach one-half of all the real estate in the State of Mississippi, of which I may die seized and possessed, coming to me under the will of my husband, W C. Knight. If the said Willie Woodson Gaither and Margaret Sangster Roach or either of them should die without heirs of the body living at the time of her death, then it is my will that the share of real estate so devised shall vest in Helen Knight Howard absolutely and in fee.'

'Item XIV. I hereby give, devise and bequeath to Helen Knight Howard absolutely and in fee, one-half of all real estate located and situated in the State of Mississippi, of which I may die seized and possessed, coming to me under the will of my husband, W. C. Knight.'

'Item XVIII. All the residue of my estate which I may have failed to dispose of herein or which may fall into my estate by reason of lapsed devises or bequests or otherwise, I devise and bequeath to Helen Knight Howard.'

Item XIX appoints Joe Sanders trustee 'of my will, hereby vesting in him * * * full power and authority to divide equally and ratably the property devised herein and to make deeds of conveyance to the respective beneficiaries'. During the course of the administration of the trust the trustee divided the property devised by Item XIII of the will, setting apart to each of the devisees therein her portion thereof, and petitioned the court below, in which petition the three devisees of that item of the will joined to authorize him to execute a deed to each of them to the portion set apart to her; the deeds to Mrs Allen, formerly Margaret Sangster Roach, and Mrs. Willie Woodson Gaither to stipulate that it is 'subject to the limitation in favor of Mrs. Helen Knight Howard as set forth in Item XIII of said will.' The Court approved this partition of the property and authorized the execution of the deeds, and they were accordingly executed, delivered to, and accepted by, the grantees therein.

Mrs Gaither is still living but Mrs. Allen died without heirs of the body living at her death, leaving a will by which she devised the property so set apart to her, to her husband, L. K. Allen. Mrs. Helen Knight Howard then filed this bill of complaint against Allen, claiming the land under the limitation over in Item XIII of Mrs. Knight's will and praying that his claim thereto be canceled and that she be given possession of the land. The decree of the Court below was in accordance with this prayer of the bill.

One of the appellant's contentions is that the limitation over in Item XIII of the will on the death of Willie Woodson Gaither and Margaret Sangster Roach refers only to their death during the lifetime of the testatrix.

The question to be determined then is the time at which the death of Margaret Sangster Roach must occur in order to cause the property here devised to her to go over to Helen Knight Howard. If Hanie v. Grissom et al., 178 Miss. 108, 172 So. 500, should control, the death referred to is death at any time either before or after the death of the testatrix, but as Mrs. Knight was domiciled in Tennessee when this will was made, its construction and interpretation, in order to understand its meaning, is governed by the law of that State under which such words in a will refer to the death of the devisee during the lifetime of the testatrix; Meacham v. Graham, 98 Tenn. 190, 39 S.W. 12; Katzenberger v. Weaver, 110 Tenn. 620, 75 S.W. 937; Frank v. Frank, 120 Tenn. 569, 111 S.W. 1119; unless it appears from the whole will that the testatrix meant death at any time, either before or after her death, Hoggatt v. Clopton, 142 Tenn. 184, 217 S.W. 657, so we turn now to the will and its codicils.

If the testatrix meant the death of Gaither and Roach during her the testatrix', lifetime, it would have been wholly unnecessary for her to provide that in that event the property devised to them should vest in Mrs. Howard for...