Bullard v. Bullard

• Decision Date: 02 July 1923
• Docket Number: 23257
• Citation: 97 So. 1,132 Miss. 544
• Court: Mississippi Supreme Court
• Parties: BULLARD et al. v. BULLARD et al

97 So. 1

132 Miss. 544

BULLARD et al. v. BULLARD et al

No. 23257

Supreme Court of Mississippi

July 2, 1923

Division B

Suggestion of Error Overruled July 21, 1923.

APPEAL from chancery court of Noxubee County, HON. T. P. GUYTON Chancellor.

Suit by Mrs. Ellen Beirne Saunders Bullard and others against Beirne Saunders Bullard and others. From a decree for defendants plaintiffs appeal. Affirmed.

Decree affirmed.

W. W. Magruder, L. L. Martin, L. L. Darroh, and B M. Walker, Jr., for appellants.

The intention of testatrix must be determined by the will and the facts in existence at the time of her death. At the time of her death none of the defendants were in being and the intention of the testatrix was evidently that her issue have her property, that is, that her property should pass to her children and their issue with survivorship among her children on failure of the issue of any one of them. The will is clearly violative of section 1190 of the Mississippi Code of 1880, which was in force at the time of the death of the testatrix in 1889. It is a gift to a succession of five donees, the second set of whom were not then living at the time of the death of the testatrix. The valid and invalid gifts under this will are so connected that it is plainly evident that the wishes of the testatrix would be defeated if the first portion, that is, the gift of the life estate to Mrs. Bullard, Mrs. Carroll, Mrs. Vernou, and William Turner Saunders, is retained and the other portion refused. All the gifts must be construed together and all must be held illegal and must fall. The children of Mrs. Bullard, Mrs. Carroll, Mrs. Vernou, and William Turner Saunders were not living at the time of the death of the testatrix and testatrix's intention at that time, from the will, evidently was that her children have her property. Her children are the sole and only heirs at law of the testatrix, and the testatrix's expressed intention as shown in the void will can only be carried out by the property descending to her heirs at law named above. 21 R. C. L., Perpetuities, 54; Gully v. Neville, 55 So. 289; Eldred v. Meek, 183 Ill. 26, 75 A. S. R. 86; Reed v. Voorhees, 3 Ann. Cas. 946, and note; Johnson Estate, 185 Pa. St. 179, 64 A. S. R., 621, and note.

Our court has uniformly held that where a devise or bequest is made to A for life with limitations over, which limitations are too remote if the will is devisable, then A takes absolute interest. Harris v. McLaren, 30 Miss. 533-570; Caldwell v. Willis, 57 Miss. 555.

It seems clear to us that this will does violate section 1190 of the Mississippi Code of 1880, for the reason that, as stated above, we have a succession of five donees, the second class of whom was not then living, as required by the statute. In Hudson v. Gray, 58 Miss. 882, almost the identical proposition is presented. In that case the testator, Gray, devised his estate to his four children, share and share alike, and by a codicil provided that in case any of these children died without male descendants, his or her share should pass to his remaining brothers and sisters. The court held that this provision was obnoxious to article 3, page 307, Code of 1857, for the reason that the estate here limited may be held by each one of the children, four in number, in succession and the limitation as to the land is therefore void. See also Nicholson v. Fields, 111 Miss. 638.

A. T. Dent, for appellees.

The questions to be considered by this court from the record are: (1) Has the chancery court correctly construed the will of Mrs. Ellen Beirne Saunders? (2) Should the demurrer have been sustained and the bill dismissed? "All rules of construction of wills are designed to ascertain and give effect to the intention of testator, for the very purpose of the construction of a will is to ascertain the intention of the testator as expressed in the will, viewed in the light of attending circumstances. The rules of construction are to be employed only when doubt exists, and when a testator employs language that is clear, definite, and incapable of any other meaning than that which is conveyed by the words used there is no reason for resorting to rules of construction." Vol. 28, R. C. L., 204 and 205, section 165, and authorities there cited. In Volume 28, section 167, at page 206, et seq., it is stated. "In the construction of wills the object is not to seek flaws and declare them involved' but to sustain them if legally possible, and the presumption is that the testator intended a lawful rather than an unlawful thing," citing Greene v. Greene, 26 N.E. 739; 21 A. S. R., 743; Mee v. Gordon 116 A. S. R. 613; In Re Billis, 129 A. S. R. 355. Therefore, when the language used in a will is reasonably susceptible of two different constructions, one of which will defeat and the other sustain the provisions, the doubt is to be resolved in favor of the construction which will give effect to the will rather than the one which will defeat it. That construction is to be adopted which will sustain and uphold the will in all its parts, if it can be done consistently with the established rules of law; and if two modes of construction are fairly open, one of which will turn a bequest into an illegal perpetuity, while by following the other it will be valid and operative, the latter mode must be preferred. Allen v. Almy, 82 Conn. 517; Ann. Cas. 1917, B. 112.

PRESUMPTIONS In the construction of a will it is usually presumed that the testator was acquainted with the rules of law, and that he intended to make a valid will. The courts will not ordinarily indulge in the presumption that the testator acted without advice or learning in drafting his will. Vol. 28, R. C. L., sec. 193, 233. This will is very short, written with great clearness, and the intent plainly expressed in unambiguous language. It is not contended or suggested that under the will the testatrix intended that the child or children of any of the children...