Hanie v. Grissom

• Decision Date: 22 February 1937
• Docket Number: 32582
• Citation: 172 So. 500,178 Miss. 108
• Court: Mississippi Supreme Court
• Parties: HANIE v. GRISSOM et al

172 So. 500

178 Miss. 108

HANIE v. GRISSOM et al

No. 32582

Supreme Court of Mississippi

February 22, 1937

Division A

1 WILLS.

Limitation over contained in provision in will that if any of children to whom testatrix left certain realty should die without children, his or her share in realty should go equally to testatrix' children that were living, was intended to take effect on death of child without issue at any time whether before or after death of testatrix, and hence children took fee defeasible on their deaths without issue leaving one or more of the other children surviving them (Code 1930, sec. 2116).

2. WILLS.

Statute providing that contingent limitation in will depending on the dying of any person without issue, or issue of the body, or without children, shall be interpreted as limitation to take effect when such person shall die not having such heir, or issue, or child, has reference to death of devisee or legatee, and in absence of intention to contrary expressly declared on face of will, requires that the limitation over be interpreted as taking effect on death of one of devisees without issue at any time (Code 1930, sec. 2116).

3. WILLS.

Admission of testimony as to expressions of testatrix in reference to her purposes and desires held not reversible error where will as interpreted carried out such purposes and desires.

4. PERPETUITIES.

Will executed in 1929 by testatrix dying in 1929, and providing that if any of children to whom testatrix left certain realty should die without children, his or her share in such realty should go equally to testatrix' children that were living, held not violative of rule against perpetuities or the two donee statute, as respects interest passing on death of one child in 1933 without issue (Code 1906, sec. 2765; Code 1930, sec. 2116).

HON. JAS. A. FINLEY, Chancellor

APPEAL from chancery court of Lee county HON. JAS. A. FINLEY, Chancellor

Bill by R. A. Eskridge against Mrs. Daisy Grissom and others. After the death of R. A. Eskridge, the cause was revived in the name of Josie Bell Eskridge Hanie, the executrix of his will. From a decree of dismissal, the executrix appeals. Affirmed.

Affirmed.

Blair & Anderson, of Tupelo, and Sohm & Humphreys, of Memphis, Tenn., for appellant.

The paragraph of this will which the court construed adversely to appellant is as follows: "If any one of my children die without any children, I want his or her part to go to my children that are living, those living to share equally." It is the contention of appellant that in view of the fact that Mrs. Henderson died prior to her daughter, Mrs. Eskridge, and even though Mrs. Eskridge had no children, she took a fee simple interest in her mother's property. Our contention is based on section 2116 of the Mississippi Code of 1930.

There are two Mississippi cases identical with the case in question, and decide this question in our favor. They are: Nation v. C. & N. Co., 115 Miss. 741, 76 So. 642; Sims v. Conger, 39 Miss. 310.

Where the will is explicit, either one way or other, there is no room for the admission of extrinsic evidence.

Gilliam v. Chancellor, 43 Miss. 437.

Courts cannot make by parol testimony a will which the testator did not make.

Welch v. Welch, 147 Miss. 728, 113 So. 197; Wallace v. Wallace, 114. Miss. 591.

The Supreme Court held in the following cases that oral testimony to vary the plain and obvious meaning and intention and language used in a will is not admissible:

Ball v. Phelan, 94 Miss. 293; McKenzie v. Jones, 39 Miss. 230; Dibrell v. Carlisle, 48 Miss. 691; Sudduth v. Sudduth, 60 Miss. 366; Harrin v. Flowers, 91 Miss. 242; Pressgrove v. Comford, 58 Miss. 644.

Mitchell & Clayton, of Tupelo, for appellees.

It is the contention of the appellee that the court was correct in admitting this testimony, because the intention of the testatrix was certainly not clear. As evidence of that fact, reasonably good lawyers differ radically as to its meaning and it becomes necessary to have this court determine what is the proper construction. Under such conditions, a correct and proper construction of the will requires a knowledge of the surroundings of the testatrix at the time of the execution of the will, and not only at the exact time of the execution, but at any reasonable time, so long as light is thereby thrown upon the intention of the testatrix.

Schlottman v. Hoffman, 73 Miss. 199; Darrow v. Moore, 163 Miss. 759; Strickland v. Delta Investment Co., 163 Miss. 782.

The appellee also contends that the court construed the will properly even though no evidence should have been admitted.

The true rule with reference to the construction of the phrase "in the event of the death" or "in case of death" is fully set out in the case of Millikin Nat. Bank v. Wilson, 343 Ill. 55, 75 A. L. R. 117; in that case the court said on page 122 of 75 A. L. R.: "The established rule is that, where there is a devise to one person and in case of his death to another, there being no contingent or doubtful circumstances connected with such death, the testator will be presumed to intend a death preceding his own, but if the devise over is to take effect upon the death of the first taker under circumstances which may or may not take place, the devise over, unless controlled by other provisions of the testamentary instrument, will take effect upon the death of the first taker under the circumstances specified, either before or after the death of the testator. . . . The rule that, where there is a devise simpliciter to one person and in case of his death to another, the words refer to death of the devisee in the lifetime of the testator, cannot be applied where the devise to the first taker is not a devise simpliciter, but is only for life, and in such a case the gift over will not fail on account of the devisee for life surviving the testator."

Kolb v. Landes, 277 Ill. 440, 115 N.E. 539.

The phrase 'in the event of the death of' may mean death at any time, and circumstances shown may suffice to give the words that import.

Britton v. Thompson, 112 U.S. 526, 28 L.Ed. 599; Armstrong v. Thomas, 112 Miss. 272, 72 So. 1006; Busby v. Rhodes, 58 Miss. 237; Halsey v. Gee, 79 Miss. 193, 30 So. 604; Ball v. Phelan, 94 Miss. 293, 49 So. 956; Sections 2764 and 2778, Code of 1906; Darrow v. Moore, 163 Miss. 705, 142 So. 447.

The contention of appellee is that the words "when such person shall die, etc.," refers not to the death of the testatrix, but to the death of the devisee or legatee under the will of the testatrix. And that in this case the reference is to any one of Mrs. Henderson's children dying without children living at the time. of the death of such legatee or devisee.

Jordan v. Roach, 32 Miss. 481; Sims v. Conger, 39 Miss. 231; Busby v. Rhodes, 58 Miss. 237; Halsey v. Gee, 79 Miss. 193, 30 So. 604; Middlesex Banking Co. v. Field, 84 Miss. 646; Ball v. Phelan, 94 Miss. 293, 49 So. 956; Armstrong v. Thomas, 112 Miss. 272, 72 So. 1006; Darrow v. Moore, 163 Miss. 705, 142 So. 447.

As to the provision of the item providing that the real estate shall not be divided unless a majority of the heirs agree in writing, this provision is valid under the following cases:

Crawford v. Solomon, 131 Miss. 792, 95 So. 686; Ford v. Smith, 162 Miss. 138, 137 So. 482; Reid v. Armistead, 151 So. 874.

The court will note that this will does not devise the property to a succession of donees, but it is devised to the four children, of the testatrix, as a class. Under the decisions of this court, this does not violate the "two donee statute" which was in force when Mrs. Henderson died in 1929.

This devise comes within the decision in the following cases: Middlesex Banking Co. v. Field, 84 Miss. 646, 37 So. 139; Henry v. Henderson, 103 Miss. 48, 60 So. 33; Redmond v. Redmond, 104 Miss. 512, 61 So. 552; Armstrong v. Thomas, 112 Miss. 272, 72 So. 1006; Darrow v. Moore, 163 Miss. 705, 142 So. 447; Bullard v. Bullard, 132 Miss. 544, 97 So. 1; Shannon v. Riley, 153 Miss. 815, 121 So. 808.

We respectfully submit that there can be no violation of the "Two Donee Statute" (section 2765 of the Code of 1906) so long as no attempt is made to make a conveyance or devise of a life estate successively in more than two grantees or devisees and that in the instant case the children of Mrs. Henderson took fees, determinable upon the contingency of dying without issue living at the time of their death, upon the happening of which contingency such estate would terminate and the share of such one would vest in the survivor or survivors.

OPINION

Cook, J.

Mrs. M. P. Henderson, a resident of Tupelo, Miss., died in January, 1929, leaving a last will and testament which was duly probated, and which disposed of her real estate in the city of Tupelo in the following manner:

"To my four children, Lillian, Georgia, Daisy and Frank I give my two store houses and lots on which they are located.

"I do not want them sold for a division without the written consent of the majority of the four heirs. I wish them to be rented out and managed as I have managed them.

"If any one of my...