Ball v. Phelan

• Decision Date: 21 June 1909
• Docket Number: 13,429
• Citation: 94 Miss. 293,49 So. 956
• Court: Mississippi Supreme Court
• Parties: WILLIAM M. BALL v. WILLIAM HUNT PHELAN ET AL

49 So. 956

94 Miss. 293

WILLIAM M. BALL v. WILLIAM HUNT PHELAN ET AL

No. 13,429

Supreme Court of Mississippi

June 21, 1909

FROM the chancery court of Tunica county, HON. PERCY BELL Chancellor.

William Hunt Phelan and others, appellees, were complainants in the court below; William M. Ball, appellant, was defendant there. From a decree overruling defendant's demurrer to the bill of complaint, the defendant appealed to the supreme court. The opinion of the court states the facts.

Affirmed.

Julian C. Wilson and W. A. Percy, for appellant.

It is immaterial whether the daughter, Julia, mentioned in the second and third items of the will of William R. Hunt deceased, took a fee defeasible on dying without children or in case her children should die before marrying or becoming of age. As this daughter, Julia, was the sole heir of William R. Hunt, and the appellant, Ball, is shown to have a conveyance from Mrs. Sarah E. Hunt, the widow, and Julia, the daughter, then in either event Julia, having conveyed her interest, would have cut off the inheritance of her own children by her deed. In other words, any claim of appellees must be under the will as purchasers.

If Julia took a fee, either defeasible or absolute, under the will, or, if she, as heir of her father, inherited the part undisposed of, then the appellees could only claim from her by descent and are barred by her conveyance through which appellant claims. Harris v. McLarin, 30 Miss. 535; Halsey v. Gee, 79 Miss. 193, 30 So. 604.

There can only be five possible constructions to this will as to the estate devised. They are:

(1) An estate to Julia for life, and to her heirs after her death with limitation over in default of children or in the event of children dying unmarried. As words of inheritance were not necessary to convey a fee, and as the rule in Shelley's case was in force in Mississippi in 1872 when the testator died, this construction would have given Julia a fee-simple estate. In this event, her deed conveyed such estate to appellant and thus would dispose of appellees' bill and have the effect of sustaining the demurrer. (2) The second construction is that an estate was devised to Julia for life and to the heirs of her body after her death, and, in default of such heirs, then over. The probability of this being the intention of the testator is very strong because of the provision in the second item of the will that Julia's husband was not to inherit in any manner whatever. This would create an estate tail under the rule in Shelley's case then in force, and under the statute in Mississippi such estate tail would become a fee-simple to Julia, and her death would bar her heirs, the appellees, now suing. This also would have the effect of sustaining the demurrer to the bill. Presgrove v. Comfort, 58 Miss. 655; Harris v McCann, 75 Miss. 822, 23 So. 631. (3) The third construction is that an estate was devised to Julia for life and to her issue after her death, and in the event that she died without issue, or if the issue died under age or unmarried, then over. If, under the decision of Jordan v. Roach, 32 Miss. 500, the word "children" does not mean issue, then it must be the intent of the will that, if Julia had a child who died in her lifetime leaving children, these children are cut off in favor of the niece of the testator's wife. If on the other hand the word "children" refers to issue, then Julia's grandchildren surviving their parent, who died before Julia, would inherit the property in preference to Betty Hunt Selden. This would accomplish the purpose the testator expressed that Julia's husband should not inherit in any manner, because it would mean a general failure of issue. In any event, if Julia's grandchildren take in preference to Betty Hunt Selden, the provision in the will would read thus: "in case Julia die without issue, or the issue die before coming of age or marrying, then the property is to go to Betty Hunt Selden." If this is the meaning of the will, the failure of issue mentioned is an indefinite failure of issue, and is an implication of an estate tail, if anything. 1 Underhill on Wills, § 471. This construction would vest the fee-simple title in Julia under Jordan v. Roach, supra, and under the statute making estates tail estates in fee-simple. Therefore the death of Julia would bar her heirs and the demurrer would be sustained. (4) The fourth construction of the will would be that an estate was granted to Julia only for life with contingent remainder to Betty Hunt Selden. If the contingency should never arise, there must be a case of partial intestacy as to the remainder upon the death of Julia. If this event Julia as heir, had the reversion. As she disposed of it by her deed the title became vested in Ball, and thereby her heirs, the appellees, are barred from inheritance. This of course would also sustain the demurrer to the bill. 1 Redfield on Wills, 454. (5) The fifth possible construction of the will is that the other constructions and theories above mentioned are morally impossible, and that the will expressly gave a life estate to Julia, and expressly provided for every other contingency, but that there was left to unavoidable implication a remainder to the children of Julia in fee. If this should fail, then the bill must fail.

There are disclosed no devises or gifts of any character to the children of Julia and no evidence that in any event they were to be the objects of the testator's bounty. The only mention of them is by way of prevention of inheritance of property by Julia's husband, even through them or for lack of them. This furnishes the clue to the mention of children in the will, and seems a bar to the implication of a devisee which can only arise where no other intention is supposable in the mind of the testator. 1 Underhill on Wills, 112; 1 Redfield on Wills, 434; 30 Am. Eng. Ency. Law (2d ed.), 697; 2 Jarman on Wills, 115.

The will was carefully drawn, and written item by item. It contained no statement of intention to dispose of all of the testator's property. No solicitation is expressed therein for the children of Julia. Julia, when the will was made, was unmarried, hence the testator did not know whether he would ever have any grandchildren, and certainly he could have had no personal affection for them. Furthermore, the will was made in Tennessee, and shows a careful avoidance of the common law and of all the Tennessee rules against perpetuities. Next to a provision for his wife and a provision for Julia, the testator's leading idea seem to be the prevention of Julia's husband ever taking this property by his marriage or inheritance. Considering that the will was so carefully drawn, it would be a very dangerous thing for a court after all these years to ascribe to the testator an intention which he did not express. Caldwell v. Willis, 57 Miss. 571.

The testator lived in Tennessee, owned property there, and in his will must be supposed to be speaking in view of the Tennessee law. In determining the intention of the testator the law of the state of his domicile will control, not only as to personality but as to realty. Wharton on Conflict of Laws, 2 vol. 1336; Crusoe v. Butler, 36 Miss. 173; Wilson v. Cox, 49 Miss. 543; Adams v. Farley, 18 So. 391. In Tennessee the husband of a married woman takes an estate by curtesy in a determinable fee. Crumley v. Deake, 67 Tenn. 673.

In this will there are only three expressions from which the implication of an estate to the children of Julia can by any possibility arise. They are: 1. The provision in the second item that the husband of Julia was not to inherit through the death of any child or children they may have, or in any manner whatever. 2. The provision in the third item that in case Julia should die without child, the property should go to Betty Hunt Selden. 3. The provision in the third item that in case the child or children should die before marrying or becoming of age, the property should go to Betty Hunt Selden.

The first provision is easily explainable on the ground that the testator was providing against the possibility of an inheritance of Julia's future husband from her future children, in the event they should inherit from Julia as her heirs, if Julia should die first leaving children.

In the second provision just mentioned, if Betty Hunt Selden had been the heir of the testator, and Julia not the heir, the estate by implication would have arisen in the children, because as the heir was not to have the property if children were alive, no one but the children could take it. This would have been necessary implication. As Betty Hunt Selden was not his heir, and his heir could take the reversion if the children did survive, an estate by implication does not arise. The intent to benefit the children as purchasers is only conjectural, which is never sufficient to create a devise by implication. An intent that they should inherit from their mother as her heirs is equally probable. If it is even possible, there would be no estate by implication. Norfleet v. Callicot, 90 Miss. 227, 43 So. 616; 1 Underhill on Wills, 622; Kinsella v. Caffrey, 11 Irish Ch. 154.

The third provision, above referred to, under which the implication of an estate to the children of Julia can by any probability arise, is a prevention making a gift to Betty Hunt Selden, a stranger to his blood, dependent on an alternative event. In the contingency of Julia dying without child, or if any child surviving her should die unmarried before reaching majority, Betty Hunt Selden should inherit. But for this provision in the second item of the will, if Julia died and her children inherited from her, the children could neither devise the property until they should arrive at their majority, nor...