Lesche v. Cutrer

• Decision Date: 25 February 1924
• Docket Number: 23393
• Citation: Lesche v. Cutrer, 135 Miss. 469, 99 So. 136 (Miss. 1924)
• Court: Mississippi Supreme Court
• Parties: LESCHE v. CUTRER et al

99 So. 136

135 Miss. 469

LESCHE v. CUTRER et al

No. 23393

Supreme Court of Mississippi

February 25, 1924

Division B

(Division B.)January 1, 1920

1 WILLS.Intention of testator ascertained from consideration of entire will must be given effect if not illegal.

The general rule of interpretation of wills is that the intention of the testator must be ascertained from the language used in the will, and must be given effect, if not inconsistent with some rule of law; and this intention is to be ascertained from a consideration of the entire will, and from the circumstances surrounding the testator when he executed it.

2 WILLS.Provision as to bequest to wayward son under condition of reformation construed.

In making provisions for a wayward son, who, "on account of his dissipated habits," was considered unfit to have the care of property, a testator, after giving to such son one-half of his estate, provided that the property given to this son should be managed and controlled by trustees, and only the income therefrom should be paid to him as it was needed for the support and maintenance of himself and family and that upon his death it should "descent to and be inherited by his children equally," and then made the following provision: "I will, however, that should my said son become or be a temperate and prudent man uniformly for five years, thus showing himself to be trustworthy, it is my will he then have his property delivered to him unconditionally, to hold in his own proper right."Held that in so providing it was the intention of the testator that the share set apart for this son should vest in him in fee, whenever he reformed, and by a life of correct living for a period of five years demonstrated that he was in reality a prudent and trustworthy man.

HON. V. J. STRICKER, Chancellor.

APPEAL from chancery court of Hinds county, First District, HON. V. J. STRICKER, Chancellor.

Proceeding between Mary Shotwell Lesche and J. W. Cutrer and others.From the decree rendered, the former appeals.Affirmed.

Cause affirmed.

Maynard, FitzGerald & Venable and Green & Green, for appellant.

The nature of the estate held by Reuben, "his property" is accurately set forth in Mitchell v. Choctaw Bank,65 So. 275.See, alsoLucas v. Lockhart,10 S. & M. 466, where there was a conveyance to the widow "during my wife's widowhood, she is to have the entire use, profits and control of my estate, and to her discretion do I intrust the education and maintenance of my children during that time," and further providing for the maintenance and education of the children out of the profits of the estate.

So, in this case under this limitation, viz: that the income should be "for maintenance of himself and family, should he have one, and for no other purpose whatever," there was created in the family a right to a maintenance which was absolutely binding upon the recipient, Reuben Shotwell, and thereof said Reuben Shotwell, and his children, during his life became substantially each entitled to a support from the maintenance afforded by the grandfather.We have carefully examined Courtney v. Courtney,90 Miss. 182, and naught therein in anywise impairs Lucas v. Lockhart, which has the approval of this court in Weathersby v. Weathersby,13 S. & M. 688;Burnett v. Strong,26 Miss. 124.See, also, Wade v. Society, 7 S. & M. 633.

It will be perceived that this management was "for the interest of said son (Reuben) or his children."So their children's welfare is to be conserved and they are placed as donees upon the same plane.First, there was a disposition of the property itself to the trustees; then a segregation of an equitable life estate to Reuben to be held conditional upon his maintaining the family.Now we come to this clause: "I will however, that should my said son become or be a temperate and prudent man uniformly for five years, thus showing himself to be trustworthy, it is my will he then have his property delivered to him unconditionally, to hold in his own proper right."Note the declaration in Bouvier's Law Dictionary, Vol. 3, page 2750: "Property in the strict legal sense, is an aggregate of rights which are guaranteed and protected by the government."

Differentiation must be made between the use of the words, "connoting the thing possessed and the rights therein;" wherein consider 6 R. C. L. 261.See, also, Chicago v. Wells,23 L. R. A. (N. S.) 207;3 Austin's Jurisprudence, page 7;Dixon v. People,39 L. R. A.(1898) 122: Austin's Jurisprudence, 417;22 R. C. L. 39.

Therefore, "his property" consisted in the rights given by this instrument to him, not the lands but the the rights in the land.These were those here dealt with.The precise distinction here sought to be maintained is made in Funches v. Seibe,26 Miss. 638.This court dealt with unconditional ownership in Bacot v. Insurance Company,96 Miss. 238.See, also, Gross v. Phoenix Insurance Co.,94 Miss. 201;Liverpool, etc., Ins. Co. v. McGuire, 52 Miss. 230;26 C. J. 172;39 Cyc. 669.

So when Robert Shotwell declared the estate to be taken by Reuben should be unconditional, it could only mean that it was discharged of that condition imported thereinto by the restrictions contained upon its use--management--for no other purpose.SeeBanking Co. v. Field,84 Miss. 646;Learned v. Collins,69 So. 682;Davenport v. Collins,96 Miss. 716;95 Miss. 359.

At most, this contention that a fee-simple was raised up in Reuben under this will is speculative, but speculative constructions must not be allowed to control where the will is clear and specific.Harvey v. Johnson,111 Miss. 566.And where, as here, the meaning of both preceding portion and the succeeding portion is plain, specific and definite, then no resort may be had for explanation to a doubtful clause, if any, therein contained.

Furthermore, note the last clause of the will: "Should my said Reuben not have children to inherit after him under this will, then I will the property set apart as his under this will shall be equally divided at his death between all the children that my sons, Bourbon and A. L. Shotwell, may have at their deaths."

The question is presented within a narrow compass, viz: there would be two clauses in a will in hopeless and irreconcilable conflict, whereas in a will the last prevails.Coke on Litt. 646.SeeWykham v. Wykham,18 Vest. 421.A more recent enunciation on the subject is found in Theobald on Wills, page 752.SeeParamour v. Yardley, 2 Plowden, 540;Ridout's Case, 3 Atk. 492;2 Minor'sInst. 1059."Where two clauses are irreconcilably repugnant in a deed, the first, and in a will, the last, prevails.So should this clause have the effect here contended for, the result would be simply a fee-simple in the children.Some courts hold that there would be a creation of a tenancy in common.SeeDay v. Wallace,144 Ill. 256;Selig v. Trost,70 So. 699;Rives v. Burrage, 70 So. 892.

There is another fundamental rule that an instrument must be so construed that no part thereof is rendered valueless.In short, ut res magis valeat quam pereat, as was said in Broom's Legal Maxims (7 ed.), 735.SeeAtkinson v. Sinnot,67 Miss. 508.Also, in George's Digest, 701, it is declared that the construction must be such as to make no part useless.Martin v. O'Brien, 5 Ga. 21.

Therefore, in this case it is the duty of this court to reconcile these provisions and to give them harmonious operation.Such operation has not been vouchsafed by the assumed construction in Millsaps v. Shotwell.Note especially Watson v. Blackwood,50 Miss. 15, where the intent must be made to control if it may be made compatible with the words, which can here be done easily.SeeRucker v. Lambdin,12 S. & M. 230;Thomas v. Thomas,53 So. 633;Tate v. Townsend,61 Miss. 316;Ward v. Cooper, 69 Miss. 789.

Watkins, Watkins, & Eager, for appellees.

Reuben Shotwell, having become and remained for five years uniformly a temperate and prudent man, thereby showing himself to be trustworthy, became vested with the fee-simple title to one-half interest in the estate of his father, Robert Shotwell.

We propose to present to the court the construction of the last will and testament of Robert Shotwell just as if there was no question of former judgment, res adjudicata, fraud, proper joinder, etc., involved in the case.In other words, the appellant instituted this particular suit for the purpose of construing the last will and testament of her grandfather, and aside from the other questions involved in the case, we propose now to meet her as we did in the court below, and endeavor to demonstrate to the satisfaction of this court, as we did the chancellor in the court below, that Reuben Shotwell, having reformed and complied with the provisions of the last will and testament of his father, became vested with the fee-simple title to the property in question.

It is elementary that the intention of the testator is to control and in reaching the intention of the testator the following general principles are academic: (a)The court will ascertain the predominating purpose of the testator.(b) The circumstances attending the testator, in fact, all surrounding facts and circumstances, will be resorted to in order to ascertain his intention and the predominating purpose.(c) The will must be construed, not by the isolated provisions in the instrument, but must be taken by the four corners and construed in its entirety.William Vannerson v. Culbertson,10 S. & M. 153;Sorsby v. Vance,36 Miss. 564;Lusby v. Cobb,80 Miss. 715;Davenport v. Collins,96 Miss. 716;Henry v. Henderson,103 Miss. 48;Crysman v. Bryant,108 Miss. 311; Broom's Legal Maxims (7 Ed.), 735.

With these well-settled rules of construction, we desire now to...