Burton v. Kinney

• Decision Date: 09 June 1950
• Citation: 19 A.L.R.2d 366,191 Tenn. 1,231 S.W.2d 356,27 Beeler 1
• Parties: , 191 Tenn. 1, 19 A.L.R.2d 366 BURTON et al. v. KINNEY et al.
• Court: Tennessee Supreme Court

Page 356

231 S.W.2d 356

27 Beeler 1, 191 Tenn. 1, 19 A.L.R.2d 366

BURTON et al. v. KINNEY et al.

Supreme Court of Tennessee.

June 9, 1950.

Bond & Haywood, Brownsville, Gray & Gray, Brownsville, for complainants.

Caruthers Ewing, Memphis, H. W. Laughlin, Jr., Memphis, A. M. Carlton, Brownsville, for defendants.

NEIL, Chief Justice.

This appeal involves the construction of the last will and testament of William Kinney who died in Haywood County in October, 1940. He left the following holographic will by which he disposed of a very large estate consisting of both real and personal property:

'Last Will & Testament of William Kinney.

'December 10, 1934.

'I devise to by beloved wife, Marie Kinney, all of my property of every kind for her lifetime.

'I devise the remainder interest in said property in equal moities to my heirs and her heirs.

'I nominate my wife executrix of this will and request that her bond and oath be waived.

'Wm. Kinney.'

The testator left surviving him, his widow, Mrs. Marie Kinney, no children being born of the said union, no parents, a large number of heirs, descendants of his brothers and sisters. All parties in interest are made parties to this cause either as complainants or defendants or by representation.

The cause was heard by the chancellor upon the pleadings and an agreed statement of facts. He decreed that the estates in remainder both as to William Kinney's heirs and the heirs of Mrs. Marie Kinney were contingent, and that the property both real and personal passed under the Statutes of Descent, Williams' Code, § 8380 et seq. The complainants excepted and were granted an appeal to this Court.

The errors assigned complain of the holding of the chancellor as above stated. To be specific, the contention is made by assignment (1) that it was error to hold that 'those persons who would constitute the heirs of William Kinney living at the date of the death of his widow, the life tenant, would take a one-half remainder interest.'

Assignment (2), 'It was error to hold that those persons who would constitute the heirs of Mrs. Kinney living at her death would take a one-half remainder interest in the property devised to them.' Under the third assignment it is insisted that since the property consisted of both real and personal property, it was error to hold 'that it would pass and be controlled by the Statutes of Descent.'

It appears that counsel for one group of remaindermen say that the remainder interest, as to both the heirs of Mr. and Mrs. Kinney is vested, and that the Court should sustain the above assignments of error. Counsel for another group say the chancellor's decree is correct and should be affirmed. Still another group contends that the remainder devised to the heirs of Mrs. Kinney is contingent and that Mr. Kinney's heirs take a vested remainder in one-half of his estate.

It is a settled rule of construction of wills that the intention of the testator is absolutely controlling so long as that intention is not in conflict with some positive rule of law. In deciding the question of intention we must look to the entire will and the language used by the testator in expressing his intention. As we approach the task before us we are constantly reminded of the words of Lord Coke in Roberts v. Roberts, 1614, 2 Bulst. 124, 130, 'wills and the construction of them do more perplex a man than any other learning.' More than a century ago Judge Story said in Sisson v. Seabury, 1832, 22 Fed.Cas. pp. 238, 239, No. 12,913, 1 Sumn. 235, 'The cases almost overwhelm us at every step of our progress; and any attempts * * * to classify them, much less to harmonize them, is full of the most perilous labor.'

Precedents are of little aid in deciding cases involving the testator's intention. In Rood on Wills, 2d Ed., Section 413, it is said: 'If by the use of plain and unambiguous language, he has made his meaning clear and certain, his will expounds itself, and all the court can do is to give it effect. All doubts must be resolved in favor of his having meant just what he said. The courts have no right in such cases to resort to a fanciful or conjectural construction, grounded on the circumstances of his property, his family, or himself.' (Emphasis supplied.)

Counsel for complainants argue with much zeal that the testator could not have intended to favor one group of heirs over another and that all remainders should be decreed as vested rather than contingent in cases of doubt. While it is true that his general intent was to divide his estate equally, one-half to his wife's heirs and one-half to his own heirs, the principle of equality is not violated whether the remainder be adjudged vested or contingent. Moreover if the legal effect of the language of the will results in one group of heirs taking a contingent and another group a vested remainder the difference in equality, if there should be any, would not be so great as to justify the Court in holding that he did not mean what he said in the use of technical words. The expressed intent can never be varied under the guise of correction because the testator misapprehended the legal effect of the provision he made. That would not be construing the testator's will but making another.

We cannot overlook the fact that Mr. Kinney, being the able lawyer that he was, knew the meaning of the word 'heirs' and the legal effect of its use, that is that a living person has no heirs, that his 'wife's heirs' could not and would not be determined until her death.

In 23 R.C.L., Section 95, page 551, it is said: 'A remainder to the heirs of the life tenant is generally a contingent remainder, for, there being no heirs to a living person, until the termination of the life estate no one can claim as the heir of the life tenant.' To the same effect Thompson on Real Property, Vol. 4, Section 2214, says: 'We have said that every remainder requires a particular estate to support it, and that a contingent remainder must vest during the continuance of the particular estate, or eo instante that it determines. Unless a contingent remainder becomes vested on or before the determination of the preceding vested estate, it can never come into possession, it has perished.' Th...