Byrd v. Henderson

• Decision Date: 20 April 1925
• Docket Number: 24724
• Citation: 139 Miss. 140,104 So. 100
• Court: Mississippi Supreme Court
• Parties: BYRD et al. v. HENDERSON. [*]

104 So. 100

139 Miss. 140

BYRD et al. v. HENDERSON. ^[*]

No. 24724

Supreme Court of Mississippi

April 20, 1925

Division B

Suggestion of Error Overruled May 25, 1926.

APPEAL from chancery court of Greene county, HON. V. A. GRIFFITH Chancellor.

Suit by Idus L. Henderson against W. C. Byrd and Maggie Byrd and another. From judgment below, defendants appeal. Reversed and remanded.

Reversed and remanded.

Currie & Currie, for appellant.

In support of the first assignment of errors, we ask: Did the court have authority, acting of its own motion, to dismiss out of court, without a hearing, the adult defendants and cross complainants? Can such a proceeding find support in either the law judicial proceedings in the due course of the administration of justice, or the public policy of a democratic government?

These defendants were sued and brought into court by due process of law, to answer a bill of complaint filed against them by the complainant, charging them with falsely and fraudulently setting up claims of title to property belonging to the complainant, and with conspiring with other defendants, named in the bill to wrongfully and fraudently deprive the complainant of her property. These defendants had the legal right to file an answer denying these charges. They filed an answer denying them. They were entitled to a public trial in the court on the bill and answer. They were entitled, publicly and in court, to vindicate themselves of these charges. Under the law and established rules of practice they were entitled to make their answer a cross bill, which they did, setting up the source, nature and justice of their claims to the property.

As to the minors, the court knew they had been made parties defendant to the original bill. The court knew that the original bill had been dismissed as to them, on the motion of the complainant, by a decree signed by the court. What could these adult defendants or their counsel do to get them back in court? Did we have any right to file an answer for them to a bill in which they were not defendants? Did we have any right to file a cross bill for them in a suit in which they were not parties? Could they be drawn into the case and be made parties thereto by a cross bill?

The complainant in the original bill chose her adversaries and among them were these minor and adult defendants who were left out and dismissed by the court. The complainant in the original bill did not select certain of her adversaries, but selected all of them. The complainant in the original bill drew no distinctions, physical or otherwise, between her adversaries. She treated them all just alike. She sued them all in the same bill, making the same charges against them. The title to the land was the main issue. The possession auxiliary or secondary only.

If these defendants are to be bound by the decree, they surely did have a right to be heard. If they are not to be bound by it, then they will have the right, regardless of the outcome of this appeal, to file a suit themselves to test their rights. The law is settled, as we understand, that no person's rights can be affected by a decree or judgment in a case to which he is not a party. The policy of the law to put an end to litigation by settling the whole controversy between all parties in one suit is, as we understand it well settled.

These defendants had gone to the trouble and expense of employing counsel and preparing for the trial. They were acting in good faith. They were not trifling with the laws, or the courts or the rights of the complainant. Their rights were left unsettled. Their minds still vexed. They had the right under the law to have their rights settled in this suit. They wanted them settled. They were dismissed without a hearing and without any settlement of their rights. This was a denial to them of their rights.

As authority in support of this assignment of error, we cite the whole course of our laws, the whole course of our system of jurisprudence, the whole course of our established rules of practice in the orderly administration of justice, to settle the rights of all litigants justly, and bring the litigation to an end. A question like this does not descend to "cases" as authority, but ascends to the heights of the living, breathing, moving and controlling principles of the law.

It is manifest from the language of the will itself, construed as a whole, that it was the intention of the devisor to will the estate to his wife, Nancy J. Prine, and her children begotten by him, and the decree is contrary to the will and the law and ought to be reversed.

Scott v. Nelson, 29 Am. Dec. 266, held: "The exposition of wills has always been governed by the intention of the testator. He, not being supposed to be acquainted with legal form and language, a greater latitude of construction is permitted, to leave one the power to make his own will in his own way. It is emphatically said, that intention is the pole-star in the direction of devisees: 2 Burr. 1112; 2 East, 42."

Moon v. Stewart, 87 Ohio St. 349, held: "Where a will bears the earmarks, as in this case, of having been drawn by a layman, and not by a lawyer, the court in the endeavor to arrive at the intent of the testator will not view the language technically, but liberally, and with reference to its popular meaning.

It is now a settled rule of construction of wills as well as deeds that the word "heir" may mean "child". 28 R. C. L. 248, sec. 16; Wilberding v. Miller, 88 Ohio St. 609; 21 Cyc. 425; Campbell et al. v. Noble et al., 19 So. 28; 21 Cyc. 426-7-8; Lockwood's appeal, 55 Conn. 157.

The text quoted from Cyc. is supported by the supreme courts of Alabama, Arkansas, California, Connecticut, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Maine, Maryland, Massachusetts, Michigan, Missouri, New Hampshire, New Jersey, New York, North Carolina, Ohio, Pennsylvania, Rhode Island, South Carolina, Tennessee, Vermont, Virginia, West Virginia, United States, England. Seymour v. Bowles, 172 Ill. 521; Leathers v. Gray, 2 S.E. 455. It has been expressly held by the supreme court of the state of Mississippi, in Boone v. Baird, 44 So. 929, that the words "heirs" may be used in the sense of "children."

We believe we have demonstrated that the whole will construed together shows undoubtedly that it was the intention of the devisor to devise the property to his wife, Nancy J. Prine and her children, and as a matter of law it was really immaterial whether that intention was fully disclosed in the words "to my present wife, Nancy J. Prine, and her heirs," for if it could be found in any provision of the will the law is satisfied.

In Hart v. Gardner et al., decided by the supreme court of Mississippi and 20 So. 877, it was held that: "As was well said in Robinson v. Payne, 58 Miss. 692, the intention must prevail, whether it is disclosed in the first or the last clause of the instrument." See too Brabham et al. v. Day, 23 So. 578.

The cases of Hart v. Gardner et al., 20 So. 877; Boon v. Baird, 44 So. 929; Brabham et al. v. Day, 23 So. 578, establish in this state the principles of law under which this will should be interpreted. According to these principles of law the words of the will "and her heirs" clearly mean "and her children," and so interpreted Nancy J. Prine and her children took the estate as tenants in common, and section 2765, Code of 1906, has no application, and on the contrary, section 2770, does apply.

It is submitted that the language of this will construed in the light of the testimony of Mrs. W. C. Byrd, renders clear the intention of the devisor to devise the property to his last wife, Nancy J. Prine, to whom he referred as his present wife, and her children then living, begotten of her by him. It is submitted further that the testimony of Mrs. Byrd did not tend or attempt in any way to show an intention "contrary" to the meaning of the words used in the will, to the exact and precise contrary, her testimony coincided with, made clear and supported the intention of the devisor as gathered from the whole will. Her testimony coincides with and renders clear the intention of the devisor to exclude from participation in his estate at his death, as distributees, his children by his first wife, and to devise the same by his will to his present wife, Nancy J. Prine, and his children by her.

"The rule is often stated to be that, in order to enable the court to place itself in the position of the testator, evidence of all the circumstances surrounding him at the time he wrote his will is admissible to aid in its construction." 14 Encyclopaedia of Evidence, 502; Gilliam v. Chancellor, 43 Miss. 437.

J. W. Backstrom, for appellee.

The only issue I see in this case, is the construction of the last will and testament of Robert W. Prine, deceased, or that is, that part of the will reading as follows: "I give, devise and bequeath all my estate and property real and personal, as follows; consisting of horses and cattle, sheep and hogs, oxen and wagons, buggies and all farm ing utensils and black-smith tools, and lands to my present wife, Nancy J. Prine, and her heirs." It seems to me that this is abundantly settled in favor of the appellee, both by statute and by the decisions of this court.

The facts and the record do not bear out the argument of counsel for appellant, at pages 8 to 11 of their brief. None of the parties were dismissed until the close of the case as the court will observe by the opinion of the chancellor and also by the decree rendered. All of the defendants were dismissed without prejudice and no rights, if any they had, are prejudiced by the decree. If they own or have any claim or interest in the land herein, there is no decree rendered in this...