Hemphill v. Mississippi State Highway Commission, 42348

• Decision Date: 08 October 1962
• Docket Number: No. 42348,42348
• Citation: 145 So.2d 455,245 Miss. 33
• Parties: Vassar D. HEMPHILL, Jr., et al. v. MISSISSIPPI STATE HIGHWAY COMMISSION.
• Court: Mississippi Supreme Court

Page 455

145 So.2d 455

245 Miss. 33

Vassar D. HEMPHILL, Jr., et al. v. MISSISSIPPI STATE HIGHWAY COMMISSION.

No. 42348.

Supreme Court of Mississippi.

Oct. 8, 1962.

Norman C. Brewer, Jr., Greenwood, for appellants.

Maurice R. Black, Carrollton, for appellee.

ETHRIDGE, Justice.

This case concerns an executory interest in land, following a defeasible fee, but to shift to named takers only upon an uncertain event. The principal questions are whether the owners of this estate have a compensable interest in lands taken and allegedly damaged by the State Highway Commission for highway purposes, and whether and how such an interest is capable of evaluation. We hold that this particular executory interest is a compensable one under the constitutional provision guaranteeing compensation for property taken or damaged by the state, but pretermit for the present a decision on specific methods of evaluating it, pending a hearing on remand upon evidence pertaining to value and a decision on that issue by the trial court.

Appellants, Vassar D. Hemphill, Jr., and M. Simpson Hemphill, sought damages for the alleged wrongful taking by the State Highway Commission (appellee) of their executory interest in 3.14 acres of land, and for damages to the balance (about 116 acres) of the family homestead. The case was heard on pleadings and stipulation. The decree of the Chancery Court, First Judicial District of Carroll County, adjudged that appellants had no 'vested' interest in the land at the time the Commission purchased it from the present possessory owners, and dismissed the bill of complaint.

Mrs. Ida Martin Hemphill died in 1952. Her holographic will was probated, and there is no question concerning her competency to execute it. The will and a codicil provided in part as follows:

'* * * I want Everett and Vassar to be executors with out bond, Everett to have the home place me china and Silver and househole effects there will be some things the others may want but most every thing goes to Everett as the others will have homes. * * *

'Codicil

'Everett if James ever wants to build out here give him land to build on give James the salad plates some of my cut glass I Everett dies before myrtis and she marries again or dies I want what I left Everett to go to Vassar Jr and Simpson. * * *'

The significant parts of the devise are italicized. Everett M. Hemphill, testatrix's son, and his wife, Mrs. Myrtis W. Hemphill, defendants and appellees herein, have lived continuously on the land in question before and since the death of testatrix. Vassar D. Hemphill is also a surviving son of testatrix. Apparently testatrix's husband was deceased. The complainants-appellants, Vassar D. Memphill, Jr. and M. Simpson Hemphill, are testatrix's grandchildren.

On March 17, 1960, Everett M. Hemphill and wife, Myrtis W. Hemphill, conveyed by warranty deed to the State Highway Commission the 3.14 acre tract for a consideration of $1,575. Thereafter the Commission entered on the land and constructed a highway over it. Hence the state has taken whatever interest complainants have in this small tract. The remaining acreage is the homestead, not taken but allegedly damaged.

The original bill of complaint named the Commission as the sole defendant, and sought substantial damages. By order of the court, complainants made Everett and Myrtis Hemphill defendants, but sought damages only from the Commission. Its answer denied that complainants owned any interest in the land or were entitled to any damages. The Commission filed a cross-bill against Everett and Myrtis Hemphill, averring that, if the Commission is liable to complainants, the cross-defendants (under their warranty of title) are obligated to reimburse the Commission for such liability as it may have. The answer of Everett and Myrtis Hemphill admitted that they had only a 'life estate' in the land, but asserted that previously they thought they had the right to convey the entire title during their lifetime. They admitted the Commission was entitled to credit, on any recovery received by complainants, for the full amount received by Everett and wife.

Appellants contend they are entitled to compensation for the taking and damaging of their interest; that they have a vested remainder, and the codicil should be read by inserting before the word 'Everett' the word 'when', and not 'if', and it should read 'when Everett dies' rather than 'if Everett dies'; that this would vest in Everett and Myrtis life estates, with remainders to appellants.

The Commission says that the will vests a fee simple estate in Everett Hemphill, and the codicil is not sufficient to modify this devise, but expresses only a wish or desire, and is precatory in nature; and if incorrect in this, the codicil means nothing more than 'if' Everett dies before his wife, then the gift is to Myrtis until her remarriage or death, whichever is earlier, with remainder to appellants; that the devise gives them nothing more than a contingent remainder, or an estate upon condition subsequent, Everett predeceasing his wife; and unless and until this happens, appellants have no 'vested' estate but only a contingent future interest, which is too speculative and uncertain for protection under the constitutional provision stating that private property shall not be taken or damaged for public use except upon due compensation. Miss.Const.1890, Sec. 17.

The chancery court agreed with the Commission. Inserting in the codicil the word 'if' before 'Everett', it held Everett was given a fee simple title, and appellants' interest was not 'vested', because it could not take effect unless Everett died before his wife. Hence appellants were not entitled to compensation. The bill was dismissed.

I.

What estates in the 'homeplace' were conveyed by the will and codicil? The two must be considered together. Otherwise the codicil cannot be given any operative effect, and this would be inconsistent with testatrix's intent. 57 Am.Jur. Wills, Secs. 611, 612. Its ascertainment involves an attempt to discover what were the ideas existing in testatrix's mind, and the determination of whether her intention was expressed in such a way as to give it legal effect and validity. Hence there are two elements in testamentary interpretation, an internal and external one. It originates in intention and is perfected by expression. Curtis, A Better Theory of Legal Interpretation, 3 Vand.L.Rev. 407 (1950).

Testatrix was an unlearned writer, and, considering all of the surrrounding circumstances and the terminology, we think she intended the word 'Everett', in the codicil, should be preceded by the word 'If'. This is further evidenced by the capital letter 'I' preceding the word 'Everett'. The former makes no sense in the context, and apparently was intended to be the first letter of the word 'If'. Mrs. Hemphill thought the underlined part of the codicil should be conditional.

The only consistent manner of applying it would be to read, 'If Everett dies before Myrtis', etc. There was no certainty he would predecease his wife, but, if he did, testatrix intended his widow would have only a possessory estate until her remarriage or during her life, whichever was the earlier, and desired the remainder to go to her grandchildren, within the blood line, and not to her daughter-in-law. Appellants' argument is not consistent with the context and the words used. It is unreasonable, because surely Mrs. Hemphill would not have said 'When Everett dies before Myrtis', since she could not predict whether he would predecease his wife. The codicil should be real with the word 'If' before the word 'Everett'.

Words omitted from a will may be supplied, provided it is necessary to effectuate the testatrix's expressed intention. This principle of construction should be used with caution, and is to be considered in the light of the converse rule, that a court will not make or rewrite a will under the guise of construction. Richmond v. Bass, 202 Miss. 386, 32 So.2d 136 (1947); 95 C.J.S. Wills Sec. 609. The criterion designated by Mr. Justice Holmes as 'the externality of the law' simply reflects that we must ask what the words used in the instrument would mean 'in the mouth of a normal speaker of English using them in the circumstances in which they were used * * *' Holmes, The Theory of Legal Interpretation, 12 Harv.L.Rev. 417 (1899), also in Holmes, Collected Legal Papers, 203-204 (1920); see 1 Restatement, Contracts 226-236 (1932). We are satisfied that, measured by both internal and external standards, Mrs. Hemphill intended this construction, and the words which she used adequately expressed that fact.

The effect of the devise is, we think, a devise in fee simple of the 'homeplace' to Everett Hemphill; but, if he dies before his wife, then to her (Mytis) until her remarriage or death, whichever is earlier, with remainder to Vassar, Jr. and Simpson.

This is the interpretation reached by the chancellor. It is the only one which seems to be consistent with testatrix's intention as derived from the context and the words which she used. The effect of the will, therefore, is to devise to Vassar, Jr. and Simpson an executory interest, not a vested or contingent remainder. The form of the words used and their operative effect support this conclusion. They do not classify as either a vested or contingent remainder. Simes and Smith, The Law of Future Interests (2d Ed. 1956) Secs. 103, 138, 141.

The will devised to Everett the 'homeplace', but, in the stated event, that preceding estate of Everett would be cut off. An executory interest cuts off the preceding estate when the event on which it is limited happens. Simes and Smith, Sec. 64. The estate in fee simple absolute is in a person other than the conveyor, but upon the happening of the event the estate shifts to another person or persons. Simes and Smith, Secs. 191, 221-232; 1 American Law of Property (1952), Secs. 4.53-4.58; 2...