Davenport v. Collins

• Decision Date: 07 March 1910
• Docket Number: 13,661
• Citation: 96 Miss. 716,51 So. 449
• Court: Mississippi Supreme Court
• Parties: WILLIAM J. DAVENPORT ET AL. v. MABEL M. COLLINS ET AL

51 So. 449

96 Miss. 716

WILLIAM J. DAVENPORT ET AL. v. MABEL M. COLLINS ET AL

No. 13,661

Supreme Court of Mississippi

March 7, 1910

FROM the chancery court of Jefferson county, HON. J. T. DRAKE Special Chancellor.

Mrs Collins and others, appellees, were complainants in the court below; Davenport and others, appellants, were defendants there. From a final decree in complainants' favor defendants appealed to the supreme court.

The facts are fully stated in the opinion of the court, reported Davenport v. Collins, 95 Miss. 358. After the delivery of the opinion reported in 95 Miss. the appellees presented a suggestion of error.

Suggestion of error sustained. Decree affirmed.

Mayes & Longstreet and Torry & Logan, for appellants.

Ratcliff & Truly and W. C. Martin, for appellees.

[The arguments of the respective counsel on the suggestion of error were practically the same as those made on the previous hearing of the case. For synopses of them, see 95 Miss. 359 to 370.]

OPINION

ON SUGGESTION OF ERROR.[SEE REPORT OF PREVIOUS DECISION, 95 Miss. 358.]

WHITFIELD C. J.

After the most mature and careful consideration which we have been able to give to this suggestion of error, we announce our conclusion in brief.

We adhere to all that was held in the original opinion, 95 Miss 358, 48 So. 733, as to the construction of the will of Washington Burch, except that we think the word "they," in that phrase in the third clause of the will, to wit, "they to take a life estate only," refers to the children of the testator, and not to any grandchild who might share in the lapsed share of a child who had died without issue. We said in the original opinion that the grammatical construction would make the word "they" in this passage refer to such grandchild or grandchildren. But it was also stated that the controlling canon of construction in respect to the interpretation of wills is always to ascertain the real intent of the testator, and then to effectuate that intent, if in any way it can be reasonably effectuated within the rules of law. A careful and mature reconsideration of this will satisfies us that it was no part of the purpose of the testator to vest any life estate in any grandchild or grandchildren under any circumstances, but that his purpose manifestly was to vest an express life estate in his children and his wife, who survived with remainders in fee to their children. That was the dominant idea, that the ruling purpose of the will, and any mere indistinctness in its phraseology, or awkwardness of expression, in the mere words used in the will, must be so dealt with, if reasonably possible, as to effectuate, and not overthrow, the dominant intent of the testator. Doubtless there is some confusion and some awkwardness of expression in this third clause of the will. But, if the great controlling purpose of the testator be kept in mind, we think it will result satisfactorily that the word "they" refers alone, in harmony with his controlling purpose, to his children and his wife. If one of the three children died without issue, and another of the three children should die, leaving a grandchild, then, under this clause, the lapsed share will revert to the...