Dealy v. Keatts

• Decision Date: 12 May 1930
• Docket Number: 28494
• Citation: 128 So. 268,157 Miss. 412
• Court: Mississippi Supreme Court
• Parties: DEALY et al. v. KEATTS et al

128 So. 268

157 Miss. 412

DEALY et al. v. KEATTS et al

No. 28494

Supreme Court of Mississippi

May 12, 1930

Division A

1 WILLS.

Intention of testator is to be determined by court, and effect given thereto unless contrary to law or public policy.

2 WILLS.

Testator's intention must be determined from will construed as a whole.

3 WILLS.

All parts of will should be considered, if possible, as portions of a consistent whole.

4. WILLS.

In case of ambiguity in language of will, construction should be placed thereon that will apportion property in just, natural, or reasonable manner.

5. WILLS.

Latter of two clauses of will that are in irreconcilable conflict is latest expression of intention and should prevail.

6. WILLS. Bequest of property to granddaughters was not repugnant or irreconcilable with further bequest of balance of property, though already disposed, of.

The clause of the will providing for bequest directed the sale of certain cottages and a portion of proceeds to be given to church and rest divided between granddaughters with balance to certain others.

7. WILLS,

Remainder over created in clause theretofore disposing of all property failed for lack of property.

8. WILLS.

Will must be construed and intention ascertained from usual and ordinary meaning of language expressed therein.

HON. G. C. TANN, Chancellor.

APPEAL from chancery court of Lauderdale county HON. G. C. TANN, Chancellor.

Proceeding between Mrs. Mary E. Dealy and others and Mrs. Daisy Andrews Keatts and another for construction of the will of Mrs. M. W. Phillips, deceased. From the decree, the former appeal. Affirmed.

Affirmed.

A. M. Byrd, of Meridian, for appellants.

The cardinal rule to be followed by the courts in construing and interpreting wills is to determine the intention of the testator or testatrix as definitely as possible and give effect to that intention, unless contrary to law or public policy.

Patterson v. Patterson et al., 116 So. 734, 150 Miss. 179; Lesche v. Cutrer et al., 99 So. 136, 135 Miss. 469; Bullard et al. v. Bullard et al., 97 So. 1, 132 Miss. 544; Culley v. Rhodes, 87 So. 136, 124 Miss. 640; Ex parte White et al., 78 So. 949, 118 Miss. 15; Joiner v. Joiner, 78 So. 369, 117 Miss. 507; Rives et al. v. Burrage et al., 70 So. 893, 110 Miss. 789; Chrisman v. Bryant et al., 66 So. 779, 108 Miss. 311; L'Hote et al. v. Roca et al., 58 So. 655, 102 Miss. 121; Henry et al. v. Henderson et al., 58 So. 354, 101 Miss. 751; Henry et al. v. Henderson et al., 60 So. 33, 103 Miss. 48; Ball v. Phelan, 49 So. 956, 94 Miss. 293, 23 L.R.A. (N.S.) 895; Davenport et al. v. Collins et al., 48 So. 733, 95 Miss. 358; Doe v. Wynne, 23 Miss. 251; 28 R. C. L. 211, sec. 173, Wills; 40 Cyc. 1386, Section B. 1a, 439.

The intention of the testator or testatrix should be determined from the will construed as a whole; each part should be considered with relation to all other parts; and if possible, all parts should be considered as portions of a consistent whole.

Patterson v. Patterson et al., 116 So. 734, 150 Miss. 179; Anderson v. Anderson, 112 So. 603, 147 Miss. 515; Woessner et al. v. Smith et al., 101 So. 849, 136 Miss. 894; Lesche v. Cutrer et al., 99 So. 136, 135 Miss. 469; Bullard et al. v. Bullard et al., 97 So. 1, 132 Miss. 544; Culley v. Rhodes, 87 So. 136, 124 Miss. 640; Spiva et al. v. Coleman et al., 84 So. 144, 122 Miss. 142; Hill et al. v. Godwin et al., 81 So. 790, 120 Miss. 83; Joiner v. Joiner, 78 So. 369, 117 Miss. 507; Powell et al. v. Warmack et al., 76 So. 504; Brickell et al. v. Lightcap et al., 76 So. 489, 115 Miss. 417; Harvey et al. v. Johnson et al., 71 So. 824, 111 Miss. 566; Selig v. Trost et al., 70 So. 669, 110 Miss. 584; Chrisman v. Bryant et al., 66 So. 779, 108 Miss. 311; Henry et al. v. Henderson et al., 60 So. 33, 103 Miss. 48; Henry et al. v. Henderson et al., 58 So. 354, 101 Miss. 751; Ball v. Phelan, 49 So. 956, 94 Miss. 293, 23 L.R.A. (N.S.) 895; Gordon v. McDougall, 37 So. 298, 84 Miss. 715, 5 L.R.A. (N.S.) 355; McGehee et al. v. McGehee, 21 So. 2, 74 Miss. 386; Tatum, Adm'r v. McLellan, 50 Miss. 1; Sorsby et al. v. Vance, 36 Miss. 564; 28 R. C. L. 215, section 175 in Wills; 28 R. C. L. 217, section 176, under Wills; 40 Cyc. 1413, section B. 1b.

The language of the testator or testatrix should be subordinated to his or her intention; if the will is inartificially drawn, the court, in construing it, should strike out superfluous words, and transpose or add language necessarily implied from the context and all the circumstances in order to carry out the obvious intention of the testator or testatrix.

Keeley v. Adams et al., 115 So. 344, 149 Miss. 201; Hill et al. v. Godwin et al., 81 So. 790, 120 Miss. 83; Baird v. Boucher et al., 60 Miss. 326; Hudson, Executor et al. v. Gray, 58 Miss. 382; Caldwell, Adm'r. et al. v. Willis, 57 Miss. 555; 28 R. C. L. 225, section 187, under subject of "Wills;" 40 Cyc. 1399, section B. 2e.

Where the language of the will is ambiguous and the intention of the testator or testatrix is thereby obscured a construction should be placed on the will that will apportion his or her property in a just, natural or reasonable manner.

Patterson v. Patterson et al., 116 So. 734, 150 Miss. 179.

Where the language of the will is ambiguous and the intention of the testator or testatrix is thereby obscured, a construction should be placed on the will that will favor his or her heirs at law, or his or her own kin, in preference to persons not so closely related.

Patterson v. Patterson et al., 116 So. 734, 150 Miss. 179; Ball v. Phelan, 49 So. 956, 94 Miss. 293, 23 L.R.A. (N.S.) 895; 28 R. C. L. 229, section 190, "Wills;" 40 Cyc. 1412, section B, 3d.

Inconsistent and repugnant clauses of a will should be harmonized, and effect should be given to each of them, in accordance with the general intention of the testator or testatrix, if possible.

Orr v. Helms et al., 117 So. 61; In re Forrester's Estate, 279 P. 721; Liesman et al. v. Liesman et al., 162 N.E. 855; Booker v. Deane et al., 163 N.E. 287; In re Robinson's Will, 144 A. 457; 28 R. C. L. 217, section 176, "Wills;" 40 Cyc. 1416, section B., 4c. (1).

The latter of two clauses of a will that are in irreconcilable conflict is the latest expression of the intention of the testator or testatrix and should prevail.

Orr v. Helms et al., 177 So. 61; Cox v. Hale et al., 114 So. 465; Bowen et al. v. Frank et al., 18 S.W.2d 1037; Rowland v. Miller, Adm'r. et al., 88 So. 263, 81 Fla. 408; McCormick v. Hall et al., 168 N.E. 900; McCreery et al. v. Burmood, 164 N.E. 135; Liesman et al. v. Liesman et al., 162 N.E. 855; Oliphant v. Pumphrey, 141 N.E. 517, 193 Ind. 656; Lightfoot et al. v. Beard et al., 20 S.W.2d 90; Succession of Guirand, 114 So. 489, 164 La. 620; In re Smith's Estate, 223 N.W. 17; In re Zwilling et al., 162 N.E. 283; N.C. Ledbetter v. Culberson, 114 S.E. 753, 184 N.C. 488; Industrial Trust Co. v. McLaughlin et al., 117 A. 428, 44 R. I. 350; Kirkland et al. v. Moseley et al., 96 S.E. 698, 109 S.C. 477; Anderson et al. v. Lucas et al., 204 S.W. 989, 140 Tenn. 336; In re Peck's Will, 144 A. 686; 40 Cyc. 1417, section B, 4c. (11).

Reily & Parker, of Meridian, for appellees.

It is always the safest mode, in the interpretation of wills, to adhere to the words of the instrument.

Taylor v. Murphy, 35 Miss. 473.

Where the same will contains several general residuary clauses, the first apparently prevails, for, reading the instrument as written, and giving the word "residue" its usual meaning, there is nothing for the subsequent clause to act upon.

40, Cyc. 1565; Mitchell v. Morse, 52 Am. Rep. 781; Jones v. Bacon, 28 Am. Rep. 1; Moran v. Moran, 5 L.R.A. (N.S.) 323.

It is the intention which the testator expresses in his will that controls and not that which he may have in his mind.

40 Cyc. 1389; Fancher v. Fancher, 23 L.R.A. (N.S.) 944; Mitchell v. Morse, 52 Am. Rep. 781; Graham v. Graham, 48 Am. Rep. 364.

In supplying words in a will it is most correct course to supply such only as it is evident the testator intended to use and not such also as would be necessary to effectuate the supposed intention of the testator.

Lynch v. Hill, 6 Murf. 14.

Argued orally by A. M. Byrd, for appellant.

OPINION

McGowen, J.

This appeal involves the construction of item 5 of the last will and testament of Mrs. M. W. Phillips, deceased, which reads as follows:

"Item V. The two cottages, one in East end and one in West end, shall be sold, if not sold previous to my death, and one-tenth given to the church of which I am a member, and the rest divided between the two granddaughters of my husband, Dr. J. R. Phillips (Mattie and Daisy Andrews) and the balance to Brother George's children."

It is conceded that the other items of the will shed no light on, nor in any way assist in the construction of, this section. It appears that in the lower court in the final distribution of the estate, the will was construed to the effect that the bequest of one-tenth of the proceeds received from the sale of the two cottages to the church was void. As to the other nine-tenths, the court held that the language used by the testatrix vested the absolute right in the two granddaughters of Dr. J. R. Phillips, Mattie and Daisy Andrews, and that the children of "Brother George" take no part therein, for the reason that the estate was exhausted by the payment of the share bequeathed to Mattie and Daisy Andrews, granddaughters of the testatrix's husband.

After this decree had been entered, but before the two-year period had expired, the children of "Brother George" filed their petition in the chancery court for a rehearing on the construction of the will, under which petition issue was joined; and upon final...