Anderson v. Anderson

Citation147 Miss. 515,112 So. 603
Decision Date25 April 1927
Docket Number26460
CourtUnited States State Supreme Court of Mississippi
PartiesANDERSON v. ANDERSON. [*]

Division B

Suggestion of Error Overruled May 16, 1927.

APPEAL from chancery court of Marshall county HON. N. R. SLEDGE Chancellor.

Suit by Mrs. E. M. Anderson against Mrs. Virginia L. Anderson, as executrix of the will of Joseph F. Anderson, deceased, and in her individual capacity, and another. Decree for complainant and defendant named appeals. Modified, and, as modified, affirmed and remanded.

Decree affirmed, and cause remanded.

Smith & Smith, E. M. Smith and E. C. Wright, for appellant.

Appellee construes the will as giving to her the right to consume the entire corpus of the estate in her support, she to fix the degree of comfort and the amount of funds required to satisfy her. Appellant contends that the will constituted appellee a life tenant and nothing more, and vested in Joe M. Anderson and his sister, Hattie Cannon, a fee-simple title in the remainder, and his sister, Bessie Jackson, an estate in remainder in trust, which contingently would ripen at once into a fee-simple title in remainder upon the death of her husband or her divorce from him. We maintain that this purpose of the whole will is manifest by construing the will as a whole.

The case might be simplified if the will directed the land to be sold in order to provide sufficient support for appellee, but the will does not so direct. We also contend that as a matter of fact by the proof of Mr. and Mrs. Walker McDonald and of Frank Anderson that appellee agreed with Joe M. Anderson, as executor of the will of Joe F. Anderson, to accept from him ten dollars per month in full discharge of the liabilities of the estate to her under the support provisions of the will of her husband, provided she be allowed to reside in the home of her daughter, Bessie Jackson.

The first question is to ascertain the purpose of the testator. The question here is: What was the purpose of Joe F. Anderson in the will in this case? The answer is: To provide a support for his widow during her natural life and to vest the remainder of his estate in his children. The effect of it is to make his widow a life tenant and his children remaindermen.

Under the rule of the vesting of estates, the life estate and the remainder vested immediately upon the death of the testator, because the law favors the vesting of estates at the earliest moment. Branton v. Buckley et al., 54 So. 850.

In the construction of a will every part and provision must be made if possible to harmonize and be consistent with the others; a construction will not, therefore, be put upon a clause of doubtful import, which would make it inconsistent with another plain and clear provision of the will. Dean v. Nunnally, 36 Miss. 358.

The intent of the testator must be gathered from the language used in the will, and by this is meant that such intention shall be gathered from the four corners of the instrument; that is to say, from the whole will--the whole frame of the will; and when once the actual intent of the testator at the time of the making of the will has been in this way ascertained, all minor, subordinate, and technical rules of construction must yield to this paramount intent thus ascertained. Ball v. Phelan, 94 Miss. 293, 49 So. 956, 23 L. R. A. (N. S.) 895.

Our court in order to give effect to the manifest intention of a testator, construed the word rent to mean real estate. Baird v. Boucher, 60 Miss. 326. The rule that if there be earlier clauses in a deed repugnant to later clauses, the later shall prevail, does not apply where the inconsistent clauses can be made to harmonize with the general purpose of the parties as gathered from the whole instrument. Goosey v. Goosey, 48 Miss. 210.

We submit that no construction of item two of this will which holds that it confers the rights to sell the land can possibly be harmonized with the later provisions of the will which require that the land be held until the death of the widow of the testator, or the death of the beneficiary, Bessie Jackson, or the death of her husband or her divorce from him, or her being survived by no heirs of her body or descendents of such heirs, and that therefore the later provisions must prevail.

Wall Doxey and Hindman Doxey, for appellee.

Appellee does construe the will as giving to her the right to consume the entire corpus of the estate in her support if necessary, but does not contend that she has the sole and only voice as to the amounts to be expended for her support and comfort except insofar as the provisions of the will give her that right and power, for it is definitely recited in the will that "such support to be equal to that in all respects which she is now accustomed to receive and such as may be necessary for her comfort in her declining years."

After the widow has been cared for, supported and maintained in the manner provided for, and after she has been given a decent Christian burial, then the great purpose and intent of the testator, Joe F. Anderson, has been fulfilled; and if anything should then remain of the estate which he had accumulated, he provides as to the distribution and disposition in the following manner: "Item 3. The balance and residue of my estate . . . I give and bequeath as follows; viz. . . ." (bequests to children).

Under no construction of the provisions could anything vest or take effect until Mrs. E. M. Anderson had lived and died and had been buried, in the manner intended by the testator, for the entire estate was charged with this burden.

In arriving at the true intention and purpose of Mr. Anderson the first significant word that appears in his will which has a direct bearing on the issues here presented is the word charge. Charge has been defined to mean a lien, encumbrance, or claim which is to be satisfied out of the specific thing or proceeds thereof to which it applies. A charge is not an interest in, but a lien upon lands. Charging an estate is appropriating a definite part or portion to a definite and particular purpose. Bouviers' Law Dictionary.

The court has repeatedly announced its construction of the words balance and residue, the most recent case in which they have been considered being Grace v. Reed, 108 So. 799. "Where estate or interest is given in one clause in clear and decisive terms, it cannot be cut down by subsequent words that are not clear and decisive." 40 Cyc. 1414-1417-1612; 105 So. 881.

In this case certainly it was the dominant purpose of Mr. Joe F. Anderson to create a charge upon his entire estate for the benefit of his widow, even though it took the corpus of the estate; and if it can be construed that he made any statements contrary to this purpose, then these statements will not prevail to destroy or to cut down the interest which was plainly, clearly and unmistakably given in the provision of Item 2.

The law further clearly recites that a construction which admits children to compete with their living parent is to be avoided unless plainly the testator's intention. 40 Cyc. 1411 et seq. See also Redfield on Wills (3 Ed.), 429-430, paragraph 12.

Argued orally by L. A. Smith, for appellant, and Hindman Doxey, for appellee.

OPINION

ANDERSON, J.

The appellee, Mrs. E. M. Anderson, filed her bill in the chancery court of Marshall county, against appellant, Mrs. Virginia L. Anderson, as executrix of the will of her husband, Joseph F. Anderson, deceased, and in her individual capacity, and also against Mrs. Hattie Cannon, in her individual capacity and as trustee for Mrs. Bessie Jackson, who has not appealed, to charge with and have sold, if necessary, for the purpose of appellee's maintenance and support, the lands of the estate of appellee's husband, Joseph F. Anderson, deceased. The cause was tried on bill, answer by appellant, and proofs resulting in a decree granting the prayer of appellee's bill. From that decree, appellant prosecutes this appeal.

We think the evidence sufficient to support the allegations of the bill. Perhaps we could not make a better statement of the case, out of which the questions to be determined arise, than by setting out appellee's bill. Leaving off the formal parts, including the affidavit and exhibits thereto, the bill follows:

"Your complainant, Mrs. E. M. Anderson, would most respectfully show unto this honorable court: That both she and the defendant are resident citizens of Marshall county, Miss. That on the 23d day of February, 1918, her husband, Joseph F. Anderson, departed this life at his fixed place of residence in Marshall county, Miss., having first made and published his last will and testament bearing date of August 2, 1906; same being duly probated and made of record on the 28th day of February, 1918, and recorded in Will Book No. 1, at page 427 of the records of the chancery clerk's office of Marshall county, Miss., a copy of same being hereunto attached and marked 'Exhibit A' hereto and asked to be taken as a part of this original bill.

"Said will specifically provides as follows, to-wit: 'Item 2nd: After the payment of all my debts and funeral expenses as per item 1st of this will. I charge my entire estate with the burden of the expense of supporting my beloved wife during the term of her natural life; such support to be equal to that in all respects which she is now accustomed to receive, and such as may be necessary for her comfort in her declining years, etc.'

"After the death of complainant's husband, Joseph F. Anderson, said will was duly admitted for probate and letters testamentary were duly issued; and her son, Joe M. Anderson, was nominated and appointed executor of said will according to its terms, on the 28th day of February, 1918.

"On the 4th day...

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