Joiner v. Joiner

• Decision Date: 15 April 1918
• Court: Mississippi Supreme Court
• Parties: JOINER v. JOINER

78 So. 369

117 Miss. 507

JOINER v. JOINER

Supreme Court of Mississippi, Division B

April 15, 1918

March 1918

APPEAL from the chancery court of Leflore county, HON. JOE MAY Chancellor.

Suit between Dorsey A. Joiner and Mrs. N. R. Joiner to construe a will. From the decree rendered, Dorsey A. Joiner appeals.

The facts are fully stated in the opinion of the court.

Affirmed.

Whittington & Osborne, for appellant.

There can be no dispute that item 2 of the codicil is inconsistent with and repugnant to at least a part of item 3 of the original will. What rules of construction govern when there are inconsistent and repugnant clauses? This is the important question presented for determination in this cause. There is no dissent in the authorities over the proposition that inconsistent and repugnant clauses or provisions must be construed so as to harmonize and give effect to each of them where possible. 40 Cyc. 1416. The inconsistent clause and the repugnant provision in the codicil and in the original will has reference only to the land bequeathed to the appellant under item 3 of the original will. We simply ask that effect be given to both the codicil under which the appellant is deprived of land bequeathed to him in the original will, and the will under which the appellant is entitled to the personal property bequeathed under item 3 of the original will.

We respectfully submit that the learned counsel for the appellee have not cited any authority whatever that would aid this court in construing the inconsistent or repugnant provisions in the will and codicil. They admit that the rules of construction stated in our brief are fundamental and elementary and are the rules that should obtain, and they further admit that while these rules and principles govern the construction of wills and codicils generally, yet they make the marvelous statement that they have no bearing or application on the disposition of the case at bar. What peculiar attribute does the will and codicil in this case possess that it should be excepted from the universally admitted rules of construction? There can be but one answer. If these well-recognized rules of construction are to obtain then the appellee's contention is incorrect and this case must be reversed. Let us say, in passing, that the authorities mentioned by the appellee in our humble judgment are not in point; they have no application to wills and codicils where there is an inconsistency or even apparent repugnancy. We have no fault to find with the quotation from 40 Cyc., page 1394, for the intention of the testator is manifest. He bequeathed all of his personal property not otherwise disposed of in item 2 of the original will to the appellant. That bequest has never been revoked. It is true that the entire bequest in item 3 of the original will was partially revoked, but under the authorities mentioned in our brief when the testator alters or changes his will in one particular there arises an implication that it was not intended to change or alter the will in any other respect. Vaughn v. Bunch, 53 Miss. 518; 1 Jarman, page 180.

It is certainly the law that a will will be construed so as to avoid partial intestacy and so as to uphold the will and the citation from Cyc. is certainly not against this proposition for it says that a construction cannot be asked which would destroy the manifest intention of the testator or the positive law of the case.

Vannerson v. Culbertson, 10 S. & M. 150, is not against the construction for which we contend. We quote from this case relied upon by appellee.

Again, learned counsel for the appellee greatly stress the case of Marshall, Executor, v. Handley, 25 A. 325. If they had gone a little further with the quotation made, we are inclined to think that this case would have shed some light and have been of some benefit in construing the inconsistent provisions in the instant case.

We simply ask that this court do what the very authority relied upon by the appellee says that it is authorized to do, and so to construe the will as to give effect to both the codicil and item 3 of the original will.

We repeat to emphasize, that the bequest of the lands in item 3 of the will is revoked by the subsequent inconsistent disposition in item 2 but we insist that the disposition of the personal property was not revoked, and that no disposition, inconsistent or otherwise, was made of the personal property in the codicil. In other words, the actual change whatever the language used, was only in reference to the lands, and in this connection we ask the court to re-read when construing the words "in lieu of" pages 7 and 8 of our brief.

Item 3 of the will was supplanted and replaced only so far as it was changed by item 2 of the codicil. The following matters and undisputed proposition will, in our humble judgment, lead the court to the conclusion that this case must be reversed:

1. The fact that the testator in the introductory clause of his will stated that he desired to dispose of all his earthly possessions, is a determining factor.

2. The further fact that he did dispose of all of his property ought to be convincing.

3. A codicil confirms rather than revokes a will and re-publishes the same, being different from a subsequent will.

4. A codicil only revokes a will to the extent necessary to give effect to the codicil. The two must be construed as one instrument.

5. Inconsistent provisions must be construed to give effect to both where they can be harmonized. 40 Cyc. 141. The construction must obtain which upholds the will and avoids partial intestacy.

6. The will will not be disturbed further than to give effect to the codicil.

7. An expressed intention altering the will in one respect shows that there is no implied revocation in other respects.

8. The courts will not favor an interpretation that revokes a devise once given, and under a codicil there can be no revocation beyond the clear unquestioned import of the language used.

There is an inconsistency between the disposition of the land in the codicil and in the will. There is no inconsistency or repugnancy between the two as to the disposition of the personality. The two can stand together so as to sustain both the will and the codicil.

Gardner, McBee & Gardner, for appellee.

We agree with eminent counsel for appellant that there can be no dispute that item 2 of the codicil "is inconsistent with and repugnant to at least a part of item 3 of the original will."

The fact of it is, item 2 of the codicil repudiates and was intended to repudiate, item 3 of the will. We shall ask the indulgence of this court for repeating once more what the testator said in item 2 of the codicil. This codicil provides as follows: "I desire to change, and do hereby change item 3 of my said last will and testament, dated the 18th of February, 1915, and, in lieu thereof, hereby give and devise to my said son, Dorsey Joiner, what is known as the R. L. Portwood place, consisting of forty acres, at or near Sunnyside, Leflore County, Mississippi. "

If the English language could express an intention to replace item 3 of the last will and testament, in stronger language than that used in this codicil of this will, we should like for counsel to advise us. Where the testator said, "I desire to change, and do hereby change item 3 of my said last will and testament, dated the 18th of February, 1915, and in lieu thereof, hereby give and devise, etc."

He certainly meant, if he meant what he said, that the provision made in the codicil was intended to be in substitution of, and for, the provision made for his son in item 3 of the will. To hold otherwise, it does occur to us, would be to give to this codicil a meaning and intention that is at variance to, and directly opposite to, the plain language used by the testator.

It is refreshing to notice the answer that able counsel makes to our reference to the meaning of the words "change" and "in lieu thereof" as construed time and again by the various courts of last resort, which have been grouped and expressed in "words and phrases." It is no answer to these authorities which we have quoted, for learned counsel to say:

"We believe that the supreme court has at least some faint conception of the meaning of the plain and simple Anglo-Saxon word 'change,' and we are likewise of the opinion that even without the aid of 'words and phrases' the supreme court of the state of Mississippi has some idea as to what is meant by the words 'in lieu of.'"

We submit that this is a very poor answer to our reference, and we quite agree with counsel that the supreme court of the state of Mississippi has some idea as to the meaning of these words, but, if there is anything elementary, it is that in construing wills, as this court has said in the case of Tucker v. Stites, 39 Miss. 196.

"That the words used in a will are to be construed in their plain and natural sense, unless a different intention be manifested by the context." It is for this reason that we quoted "Words and Phrases," to show how other supreme courts construed these simple words, and thought it might be of assistance in this case.

The truth of the business is, that there is nothing in this codicil to be construed, as the codicil construes itself, that is, if the words used are to be accorded their "plain and natural sense."

With just one other reference we shall close, as we do not care to worry this court with any further citations of authorities for your honors do not need authorities to tell you the meaning of the plain, simple language that was employed by the testator in this codicil. It will not do for our able counsel to suggest to this court what a hardship his client might endure or suffer should...