Gordon v. Gordon

• Decision Date: 28 October 1940
• Docket Number: 34235
• Citation: 198 So. 287,189 Miss. 729
• Court: Mississippi Supreme Court
• Parties: GORDON v. GORDON

198 So. 287

189 Miss. 729

GORDON v. GORDON

No. 34235

Supreme Court of Mississippi

October 28, 1940

Suggestion Of Error Overruled, December 23, 1940.

APPEAL from the chancery court of Claiborne county, HON. R. W CUTRER, Chancellor.

Suit by Mrs. Mary F. Gordon against William P. Gordon, to cancel the claim of William P. Gordon to certain property. From the judgment, William P. Gordon appeals. Reversed and bill dismissed.

Reversed and dismissed.

Sam C Cook, of Greenville, for appellant.

Section 2448 of the Code of 1892 controls the construction of Mrs. Gordon's will and points the path for the court to follow in determining the remainderman to take the property in question on the death of Charles Addison Gordon, without issue. The limitation in Mrs. Gordon's will is, within the meaning of the above statute, a contingent limitation. It is made to depend upon the death of Charles Addison Gordon without heirs of his body; thereupon the statute commands that that limitation shall take effect when Charles Addison Gordon shall die not having children. In other words, the language of Mrs. Gordon's will is made by statute to mean that the children of Charles Addison Gordon should only take the remainder in this estate in the event they survive their father. The date of his death is the date to determine in whom the property in question will ultimately vest. Under Mrs. Gordon's will the remainder estate goes either to the children of Charles Addison Gordon, if living at the date of his death, or to William P. Gordon, if living, or to his heirs, as devisees of Joanna A. Gordon, if. William P. Gordon be dead.

Sec. 2116, Code 1930; Sims v. Conger, 39 Miss. 231.

Our section 2446 of the Code of 1892 abolishing the rule in Shelley's case commands the court to construe the words, "or their heirs, " in Mrs. Gordon's will, to mean that the heirs of William P. Gordon take as purchasers under the will of Joanna A. Gordon.

Sec. 2114, Code of 1930.

The intention of the testator is the guiding star in the construction of the will.

Sorsby v. Vance, 136 Miss. 564; Chrisman v. Bryant, 108 Miss. 311; Lesche v. Cutrer, 135 Miss. 469; Scott v. Turner, 137 Miss. 636; Dealy v. Keatts, 157 Miss. 412.

A will is construed within its four corners, effect being given to all its language.

Ball v. Phelan, 94 Miss. 293; Keeley v. Adams, 149 Miss. 201; Simpson v. Watkins, 162 Miss. 242.

A will is construed according to the grammar of its language.

Vannerson v. Culbertson, 10 S. & M. 150; Hervey v. Johnson, 111 Miss. 566.

A court is not authorized to eliminate, or change; or substitute language in a will, but is required to give effect to that language according to its meaning.

Schlottman v. Hoffman, 73 Miss. 188.

The court below construed the word "or" in Mrs. Gordon's will to mean "and." Such a construction, we respectfully submit, does violence both to the language and the intent of the testatrix.

Century Dictionary; 69 C. J. 353, 354, sec. 1361, and cases there cited; Ebey v. Adams, 25 N.E. 1013, 135 Ill. 80, 10 L. R. A. 162; Gilmor's Estate, 154 Pa. St. 523, 35 Am. St. Rep. 855.

We are unable to find any Mississippi cases in which controversy arose as to whether or not the disjunctive "or" means the conjunctive "and" in the courts of Mississippi as applied to wills.

Darrow v. Moore, 142 So. 447.

It is said by counsel that even though "brother and sister" took a contingent remainder, such estate could be alienated. That is very true. The brother and sister took a contingent remainder; but as to the brother, father of the defendant, the contingency upon which he took his estate failed, and, therefore, the estate transferred by him failed in his grantee. The estate of the brother was one contingent that he survive Charles Addison Gordon. He did not survive Charles Addison Gordon, and, therefore, the remainder vested in the heirs of William P. Gordon.

The true construction of the will, as we construe it, is that on the death of Charles Addison Gordon, the heirs of William P. Gordon took the remainder in a one-half undivided interest in the property in controversy. William P. Gordon is confessedly one of those heirs. Whether or not he is the sole one is not before the court for consideration. If the court should undertake this suit despite the absence of one of William P. Gordon's heirs from the record, the proper decision, we suggest, would be to reverse the case with directions to dismiss the bill for the reason that the appellee is not vested with the fee simple title to the property in controversy. The exact determination of that title could be left to a cause in which all interested parties were before the court.

Joanna A. Gordon, under the statute, was empowered to choose the ultimate limitee of the remainder in the property in question, so long as that ultimate limitee was one of her right heirs upon the date that the limitation took effect, and that she was authorized to determine when that limitation should take effect, so long as it did not extend beyond the lives of the two persons in being at the date of the effectiveness of her will.

Middlesex Banking Co. v. Field, 84 Miss. 646, 37 So. 145.

E. S. and J. T. Drake, of Port Gibson, for appellee.

The title devised to the "brother and sister, " by the will in question, under whom appellee claims is a remainder in fee, which could be conveyed by them and bind their heirs.

Code 1892, secs. 2435, 2438; Sims v. Conger et al., 39 Miss. 231; Busby v. Rhodes, 58 Miss. 237; 2 Blackstone, p. 108; 21 C. J., page 992, sec. 18 and page 997, secs. 155, 156; Chapman v. Sims, 53 Miss. 154; LeFlore County v. Allen, 80 Miss. 298, 313; Alexander v. Richardson, 106 Miss. 517; Tiedeman on Real Property, Chap. III, sec. 37, and page 327, sec. 411; Chapman v. Chapman, 18 S.E. 913; Mulls, Exors., v. Mulls, Admrs., 81 Pa. St. 393; Patterson, Exors., v. Hawthorn, Admrs., 112 Pa. 12; Darrow v. Moore, 163 Miss. 705; Middlesex Banking Co. v. Field, 84 Miss. 646; Scott v. Turner, 137 Miss. 636.

If the will in question be construed as appellee would have it, then it is in contravention of the Two-Donee Statute and the first taker, Charles A. Gordon, under whom appellee claims, took a fee simple.

Sec. 2436, Code 1892; Sec. 2765, Code 1906; Bibby v. Broome, 116 Miss. 70; Middlesex Banking Co. v. Field, 84 Miss. 646; Darrow v. Moore, 163 Miss. 705, 142 So. 447; Harring v. Flowers, 91 Miss. 242; Wallace v. Wallace, 114 Miss. 591; Davenport v. Collins, 95 Miss. 358; Scott v. Turner, 137 Miss. 636; Norfleet v. Norfleet, 151 Miss. 790; Liberty Bank v. Wilson, 116 Miss. 377; Smith v. Muse, 134 Miss. 827; Caldwell v. Willis, 57 Miss. 555; Nicholson v. Fields, 111 Miss. 638; Hanie v. Grissom, 178 Miss. 108.

The will in question confers a vested remainder in the "brother and sister, " under whom appellee claims, who could alienate the same and bind their heirs.

Washburn on Real Estate, sec. 1541; 41 C. J. 997, sec. 155.

S. L. McLaurin, of Brandon, for appellee.

The attempted bequest to the heirs of Charles A. Gordon (son of Mrs. Joanna Gordon, testatrix) after a life estate to Charles and a second life estate to Mary (wife of Charles) violates the two-donee statute because the heirs of Charles were not heirs of Mary, and were not heirs of the donor.

Sec. 2436, Code of 1892; Alexander v. Richardson, 106 Miss. 517; Darrow v. Moore, 163 Miss. 705; Harris v. McLaran, 30 Miss. 533-570; Jordon v. Roach, 32 Miss. 481; Powell v. Brandon, 24 Miss. 343; Caldwell v. Willis, 57 Miss. 555; Scott v. Turner, 137 Miss. 636.

Limitation of Issue Statute (Section 2448, Code of 1892) is not applicable, as bequest to heirs of Charles is void.

The void bequest to the heirs of Charles being eliminated, the will would be: (a) A life estate to Charles; (b) A life estate to Mary; (c) Remainder to William (father of appellant) and Margaret, or their heirs.

As William and Margaret were both living when testatrix died, they were immediately vested with the remainder.

Schlater v. Lee, 117 Miss. 701; Sec. 2436, Code 1892.

Appellant takes nothing under the will, as his father (William P. Gordon) was living when testatrix died, and appellant is not an heir of testatrix.

Alexander v. Richardson, 106 Miss. 517; Schlater v. Lee, 117 Miss. 701.

If the void bequest to the heirs of Charles creates an estate tail, the first donee (Charles) took an estate in fee simple.

If the void bequest to the heirs of Charles be treated as a nullity, the title subject to the life estates vested immediately in William and Margaret when testatrix died.

Schlater v. Lee, 117 Miss. 701.

If the will passed a fee simple title to Charles, the first donee, or to William and Margaret, upon the death of testatrix, the appellee acquired a fee simple title by the life estate to her and the deeds from William and Margaret to Charles, and the deed from Charles to appellee, and by the death of Charles.

Sec. 2438, Code of 1892.

Argued orally by Sam C. Cook, for appellant, and by J. T. Drake and S. L. McLaurin, for appellee.

OPINION

Ethridge, J.

The appellee, complainant in the court below, filed a bill to cancel the claim of the appellant to a certain property in Port Gibson, Mississippi. She deraigned title through a will executed by Mrs. Joanna Gordon, who then owned the property devised in the will. The provision in the will through which complainant's claim was deraigned, reads as follows "I give and bequeath unto my beloved son Charles Addison Gordon, the house in Port Gibson, Mississippi, in which he now resides, with the lot on which it stands, fronting one hundred and fifty feet on Church Street and running back one hundred and fifty feet, for life, and after his death, to his wife, Mary F. Gordon, for life,...