Chrisman v. Bryant

• Decision Date: 21 December 1914
• Docket Number: 16702
• Citation: 108 Miss. 311,66 So. 779
• Court: Mississippi Supreme Court
• Parties: CHRISMAN v. BRYANT, et al

66 So. 779

108 Miss. 311

CHRISMAN v. BRYANT, et al

No. 16702

Supreme Court of Mississippi

December 21, 1914

APPEAL from the chancery court of Madison county. HON. G. G. LYELLE Chancellor.

Petition by J. J. Chrisman, executor of J. B. Chrisman, deceased against Mrs. Carrie Bryant and others, for a construction of the will of the decedent. From a decree construing the will the executor appeals.

The facts are fully stated in the opinion of the court.

Affirmed.

Green &amp Green, for appellant.

Where there is a bequest of the identical property to different persons by two clauses in a will, that which is last, will revoke the former and prevail. The rule of interpretation is given in Ball v. Phelan, 94 Miss. 316, where it is declared that the intention must be gathered from the language used in the will taken from its four corners and where intent is expressed, no room exists for the secondary rules usually adopted for the ascertainment thereof.

As said in McGehee v. McGehee, 74 Miss. 386, the true rule of a will is to ascertain the intention of the testator from the will itself, the whole will taken together. No word can be supplied even though by so doing the will would be made in accordance with law. Caldwell v. Willis, 57 Miss 555, syllabus 7; Johnson v. Delome, 77 Miss. 27; Sluigsby v. Granizer, 7 H. L. Case, 284; Williams v. Ball, 2 Miss. Decision 536; Vannerson v. Culbertson, 10 S. & M. 150; Coke on Littleton, 646. If not, then the parties are tenants in common of the property so devised, each taking a half interest therein. But this early rule of the common law has been modified by the mere doctrine and the more recent rule is this stated by Thomas on Coke on Littleton, 642: "There is a great contrariety in the books, on the effect of two inconsistent devises in the same will. Some hold with Lord Coke, that the second devise revokes the first. Plowd. 541. Others think that both devises are void on account of the repugnancy. Ow. 84. But the opinion supported by the greatest number of authorities is, that the two devisees shall take in moieties. The authorities for and against Lord Coke's opinion are well collected and arranged in note in the English edition of Plowden. See page 541. Also amongst those who think that both devises shall operate, there is some difference as to the manner in which the two devisees ought to take. In some of the old books it is said generally, that there shall be joint tenancy. But according to the modern opinion, and as it seems, the best, there will be a joint tenancy or a tenancy in common, according to the words used in limiting the two estates; by which we presume it is meant that if the two estates given by the will have the unity or sameness of interest in point of quantity essential to a joint tenancy, the devisees shall be joint tenants, but otherwise shall be tenants in common. See 3 Atk. 493. Hagr. n. l. 112 b. (144).

"That if a thing be given in one part of a will, to one, and in another part to another, the devisees shall take in moieties, see Acc. Edwards v. Symons, 6 Taunt. 218, arg. But the general rule is, that of two inconsistent limitations in a will, the latter prevails. See Wykham v. Wykham, 18 Ves. 421. Ed." Theobald on Wills, 752; Paramour v. Yardley, Plow. 451; Bennett's case, Cro. Eliz. 9; Sherratt v. Bentley, 2 M. K. 149, 162. Paramour v. Yardley, 2 Plowdenm 540; Litt, 112, b. 2; Rol. R. 423, arguendo, Owen 84, per ANDERSON, J.; Swinb. 552, 553. Godolph Orph. Leg. 461. But by the greater opinions it seems that B. and C. shall be joint tenants, as appears in 3 Leon. 11, pl. 27, per DYER & BROWN, J.J., 3 Bulst. 105, Per DODDER, J., 1 Rol. R. 320; Per Idem. Yelv. 210; Per WILLIAMS, J., Lane 118; Per TAMFIELD, Ch. Cro. E. 9, pl. 2; Per ANDERSON & MEAD, JJ., Cro. J. 49, Jenk. 256, Pl. 50, 10 Mod. 522, 1 Ven. 30. Treat. of Wills, 129, 130; Pickering's Lect., Mich. Term, 33 Geo. 2. In Ridouts Case, 3 Atk. 492, it is said: "The law presumes that the testator even in making his will may vary the intention; as suppose a man gives a farm in Dale to A. and his heirs in one part of the will, and in another to B. and his heirs, it has been held by the old books to be a revocation; but latterly construed either a joint tenancy or tenancy in common, according to the limitation (1). "Note: Where a man gives a farm in Dale to A. and his heirs in one part of his will and in another to B. and his heirs, it is now construed either a joint tenancy or tenancy in common, according to the limitation."

In 2 Minor's Inst., the rule upon the subject is thus stated at page 1059: Where two clauses are irreconcilably repugnant, in a deed, the first, and in a will, the last, prevails. "It will be observed, in the application of this maxim, that the clauses are supposed to be absolutely incapable of being reconciled, and that if, by any admissible construction the repugnancy can be avoided, there can be no occasion to invoke the rule under consideration. Thus, if in different clauses of a deed or will the same subject be given to different persons, the clauses are not irreconcilably repugnant, for the persons may take as joint tenants, or as tenants in common, according to the terms in which the grants or devises are conceived; and such, according to the better opinion, notwithstanding Lord Coke (2 Th. Co. Lit. 646) countenances a contrary doctrine, seems to be the preferable interpretation. 2 Th. Co. Lit. 646, N. 12. Ridout v. Pain, 3 Atk. 493; Paramour v. Yardley, 2 Plowd. 541, n. (do; Price v. Cole, 83 Va. 343, 345.)

"If, however, the repugnancy is in no admissible way, capable of being reconciled, nothing remains but to apply this rule, and to hold that in a deed the first, and in a will the last, prevails (Wykham v. Wykham, 18 Ves. 421; Barksdale v. White, 28 Grat. 227 et seq.) although such a method of interpretation, seeing that the whole of both classes of instruments must be considered together, and are executed at the same moment of time, can be justified only by rigorous necessity."

The law therefore seems to be perfectly well settled that if the older rule announced by Lord Coke be followed and the conflict in the will be held irreconcilable, as it must be in the present case, then the first legacy is revoked by the second. But if this rule be not followed, but the further rule of construction that the parties shall be tenants in common by giving effect as declared by Professor Minor and Mr. Theobald, wherein they are supported by all of the modern cases, then these several parties took the bonds mentioned as tenants in common, the express declaration of the will being to the effect that it was only the bonds in the possession of Mr. Davis, which were dealt with, and these bonds were dealt with twice, given to two different parties, and by said gift the authorities declare that the parties take under the present rule as tenants in common.

Luther Manship, Jr. and Brady & Dean, for appellee.

As far back as 1858 this court said: "The intention of the testator, provided that intention be legal, is the law which regulates the construction of his will. That intention is to be gathered from the whole will, and, from the nature of the subject, overrides all technical rules which relate to the construction of words, rather than the nature of the estate. For though technical rules of law and the authority of adjudged cases are not to be disregarded in the interpretation of wills, yet their construction is so dependent upon the language and circumstances of each particular instrument, that adjudged cases become of less authority and more hazardous application, then decisions on any other branch of the law." 36 Miss. 564.

The case of C. H. Williams v. Sarah P. Ball et al., decided April 11, 1881, and cited by appellant in his brief, decided that the court would look at the circumstances surrounding the testator at the time the will was written, but the court refused to change the whole spirit and intention of the will by limiting it to a certain period of existence, terminable upon some condition not expressed in the will. In Hampton R. Lusby et al. v. Hezekiah Cobb et al., this principle of interpretation is repeatedly stressed (80 Miss. 715, on page 726). Clarke v. Boorman's executor, 18 Wall. 502, 21 L.Ed. 904; Bosley v. Wyatt, 14 How. 390, 14 L.Ed. 468; Ball v. Phelan et al., 94 Miss. 293; Re Dongers Estate, 103 Wis. 497, 79 N.W. 787, 74 Am. St. Rep. 885.

Going back somewhat in the decisions, we find this court, in Mary Gilliam v. Chancellor & Murray, Extrs., 43 Miss. 437, at page 453, using this language: "On question of interpretations it is always competent by parol to prove the situation of the testator, the condition, character, etc., of his property, etc., so that the court may, as nearly as possible, realize the surroundings of the testator, his relations to the subject with which he is dealing, and thereby be the better qualified to reach his meaning and purposes through the language employed in his will to express them." Rebecca Watson et al. v. D. C. Blackwood, Guardian, 50 Miss. 15, at page 20, 2 Jarm. on Wills, 741; Brown v. Thorndyke, 15 Pick. 400; Gilliam v. Chancellor & Murray, 43 Miss. 435; Chase v. Lockerman, 11 Gill & Johns, 206; Covert v. Sebern, 73 Ia. 564, 35 N.W. 636. In Re Dominci, 151 Cal. 181, 90 P. 448; Selwood v. Mildmay, 3 Ves. Jr. 306; Cleverly v. Cleverly, 124 Mass. 314; Klock v. Stevens, 20 Miss. 383, 45 N.Y.S. 603; Nolan v. Balton, 25 Ga. 352; Hodgson v. Hodgson, 2 Vern. 593.

The whole purpose of all jurisdictions in such matters is to ascertain the will of the testator and see that it is put into effect. To accomplish this, they will, in this day and time, go to almost any lengths that will not actually require them to rewrite the decedents' last will...