Darrow v. Moore

Decision Date16 May 1932
Docket Number29313
Citation142 So. 447,163 Miss. 705
CourtMississippi Supreme Court
PartiesDARROW et al. v. MOORE et al

APPEAL from chancery court of De Soto county.

(In Banc.)

1 WILLS.

In construing will, words used must be construed according to their interpretation and meaning as defined in law of decedent's domicile.

2 WILLS.

Court construing will may consider surroundings of testator when executing will.

3 COURTS.

Local court is not bound by decision of court of foreign state construing identical will, where circumstances surrounding testator at time of execution were not presented in latter court.

4 COURTS.

Local court in following law of state of testator's domicile looks to general line of decisions on subject-matter presented.

5 WILLS. Terms of will held to devise to daughter base or determinable fee with limitations and conditions and terminable as of date of daughter's death.

Language of will was, in substance, that testator gave to daughter all balance of property, both real and personal, upon conditions and limitations to effect that, if daughter died without issue of her body, property was thereby given to testator's brothers and sisters or their descendants, the descendants of each brother or sister to take that share which brother or sister would have taken had he or she been living.

6. PERPETUITIES.

As to share given direct to testator's daughter, Two Donee Statute, as it read in 1871 did not affect right of testator's sisters and brother nor their descendants from taking as purchasers under will (Code 1930, section 2116).

7. WILLS. Under will, share given wife for life did not vest in daughter if she survived wife, but vested in testator's brothers and sisters, if daughter died at any time without issue of her body.

Under will, testator gave daughter share of property on condition that, should she die without issue of her body, property was thereby given to testator's brothers and sisters or their descendants, and also provided that, upon death of wife, testator gave to daughter portion of property therein given and devised to wife for her life and upon the same limitations.

8. WILLS.

Term "brothers and sisters" embraces brothers and sisters of whole and of half blood.

9. WILLS.

Term "right heirs," as used in statute respecting limitation on failure of issue, means those persons who, in event of testator's death, would inherit property as heirs at law (Code 1906, section 2765).

10. WILLS.

Terms "lawful heirs," "right heirs," and "heirs" are synonymous.

11. PERPETUITIES.

Testator's brothers and sisters of half blood, not being right heirs, gift over to them jointly with brothers and sisters of whole blood made them third donees under statute, and they could not take under will (Code 1906, section 2765).

12. JUDGMENT.

Decree dividing funds paid into court in condemnation proceeding and adjudicating interests of testator's daughter and descendants of brothers and sisters of whole blood bound them in subsequent suit.

13. JUDGMENT.

That testator's half brothers and sisters, not entitled to take under will, were not parties to suit involving division of proceeds in condemnation proceeding, did not affect rights of those whose rights were adjudicated.

14. JUDGMENT.

Judgment in former case is res judicata of questions specifically presented by pleadings, and of all questions involved which could have been presented.

HON. PHIL STONE, Special Chancellor.

HON. PHIL STONE, SPECIAL Chancellor.

Suit between George M. Darrow and others and Edward S. Moore and others. From the decree rendered, the former appeal. Affirmed in part, and reversed in part.

Superseding opinion in 135 So. 484, which is withdrawn.

Affirmed and remanded. Affirmed in part, and reversed in part.

Holmes & Bowdre, of Hernando, for appellants.

When the sole question is the sense in which certain words or phrases are used and not their legal effect, they will be construed according to the lex domicilii in the case of real as well as personal property.

5 R. C. L., 1019, sec. 106; Adams v. Farley, 18 So. 390; Crusoe v. Butler, 36 Miss. 150; Ball v. Pheland et al., 94 Miss. 339; Rose v. Rambo, 120 Miss. 305; Ford v. Ford, 80 Mich. 42, 44 N.W. 1057; Minor on Conflict of Law, 338.

Words of supvivorship in a will, unless there is a manifest intent to the contrary, always relates to the death of the testator, and that, in the absence of a contrary intent, a will always speaks as from the date of the testator's death.

Smith v. Smith, 139 Ala. 406; Hoover v. Hoover, 116 Ind. 498; Smith v. Smith, 157 Ala. 79, 88; Haigler v. Haigler, 202 Ala. 480, 80 So. 864; Fowlkes v. Clay, 88 So. 651, 654; O'Connell v. O'Connell, 72 So. 81; Spiral v. Frenkel, 97 So. 104; Hughuley v. Burney, 100 So. 817.

If there is no previous interest given, the period of division is the death of the testator and survivors at his death take the whole; but if a previous life estate be given, then the period of division is the death of the life tenant, and survivors at such death take the whole.

Burleson v. Mays, 189 Ala. 107, 119, 66 So. 36, 40; Reynolds v. Reynolds, 95 So. 180; Fowlkes v. Clay, 88 So. 651.

The Mississippi Courts are in full accord with the rule followed in Alabama, that words of survivorship in a will, unless there is manifest intent to the contrary, always relate to the death of the testator, but if a previous interest of life estate is given, they relate to the death of the life tenant.

Nations v. Colonial Mortgage Company, 115 Miss. 741.

The great weight of authority in the United States is that the time of defeasance under a devise for life with remainder in fee and to third parties if the remaindermen die childless or without issue, is the termination of the life estate, and if the remainderman survives the life tenant, he takes the fee.

Bradshaw v. Butler, 110 S.W. 420; Rener v. Renfro, 104 S.W. 951; Duzan v. Chappel, 84 N.E. 775; Satterfield v. Tate, 64 S.E. 60; Garrard v. Kendall, 121 S.W. 996; Reuling Extr. v. Rueling, 126 S.W. 151; Jewell v. White, 179 S.W. 212; White v. White's Guardian, 182 S.W. 942; In re Farmers Loan & Trust Co., 82 N.E. 181; Hohnboch v. Hohnboch, 139 N.W. 731; Baker v. Thomas, 189 S.W. 215; Harrington v. Cooper, 189 S.W. 667; Welch v. Crowe, 155 N.E. 859; Michael v. Minchin, 101 A. 283; Fulwiler v. McClun, 120 N.E. 458; In re Kelsey's Estate, 189 N.Y.S. 60; Starnes v. Sanders, 108 S.E. 37; Bonner v. Wedekind, 237 S.W. 394; Mahoney v. Mahoney, 120 A. 342; In re Turner's Will, 200 N.Y.S. 476, 206, App.Div. 294; Ensimer v. Grimes, 275 S.W. 19; Doris v. Scharf, 133 A. 197; Ewart v. Dolby, 5 S.W. 428; Boynton v. Boynton, 165 N.E. 489; Rankin v. Rankin, 12 S.W. 319; Parpoint v. Parpoint Admr., 15 S.W. 513; Page on Wills, secs. 1140, 1142.

Courts do not look with favor on indefinite failure of issue and are inclined to limit the devise over in case the remainderman die without issue to a period before distribution and usually the gift over in case of death during the life of the testator, but where the gift is the remainder, then the time of death refers to death occurring before the termination of the particular estate.

Schouler on Wills, sec. 1053.

It has been a settled rule in this state that where an estate is devised to one for life with remainder to another with the further provision that if the remainderman should die without children or issue, then to a third person, the words dying without children or issue have reference to the death of the remainderman before the termination of the life estate or, if the remainderman survives the life tenant, his estate becomes absolute.

Eakins v. Eakins, 191. Ky. 61; Freund v. Freund, 110 A. 449; Boothe v. Eberly, 124 Md. 22.

If there is a particular estate preceding the gift over, the latter will take effect if the contingency happens at any time during the existence of the particular estate. In such case the death without children surviving refers to death before the death of the life tenant, unless the wills shows that the testator intended to refer to a later date.

Risser v. Ayers, 306 Ill. 293, 137 N.E. 851; Church v. Ball, 236 Penn. 605, 84 A. 1099; Fitzgibbon Estate, 272 Penn. 345, 116 A. 289.

This identical will of Jacob K. Swoope has been construed by the Supreme Court of Alabama. The court held in this case that the words "die without issue" as used in the will of Jacob K. Swoope, refer to the death of his daughter, Tempe, before the death of the testator, and as she survived the testator, she took the lands devised to her in fee.

Darrow v. City of Florence, 91. So. 606.

A gift to a class is a gift of an aggregate sum to a body of persons uncertain in number at the time of the gift, to be ascertained at a future time, who are all to take in equal or some other definite proportion, the share of each being dependent for its amount upon the ultimate number. Under a bequest to a class, subject to increase or diminution by reason of future births, or death, the entire interest vests in such persons only as fall within the class at the date of distribution.

28 R. C. L., page 260, sec. 233.

The general rule therefore is that a gift to a number of persons not named, but answering the general description, is a gift to a class.

28 R. C. L., page 261; Branton v. Buckley, 99 Miss. 122.

It is the general rule that a devise to brothers and sisters includes the half blood as well as the whole blood.

40 Cyc. 1453; 9 Ann. Cases 140; Lusby v. Cobb, 80 Miss. 715.

Descendants are those who have issued from an individual including children, grandchildren, and their children to the remotest degree--issue of any decree.

Huston v. Read, 32 N.J.Eq. 591, 599; Bryan v. Walton, 20 Ga. 480, 512; ...

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