Lusby v. Cobb

• Citation: 80 Miss. 715,32 So. 6
• Court: United States State Supreme Court of Mississippi
• Decision Date: 19 May 1902
• Parties: HAMPTON R. LUSBY ET AL. v. HEZEKIAH COBB ET AL

32 So. 6

80 Miss. 715

HAMPTON R. LUSBY ET AL. v. HEZEKIAH COBB ET AL

Supreme Court of Mississippi

May 19, 1902

March 1902

FROM the chancery court of Washington county. Hon. A. MCC. KIMBROUGH, Chancellor.

Cobb and others, appellees, were complainants in the court below Lusby and others, appellants, were defendants there. From a decree in complainants' favor defendants appealed to the supreme court. The opinion states the case.

Reversed and remanded.

Campbell & Starling, for appellants.

The principal question presented for consideration is: To whom did J. C. Lusby intend his estate to go, and what did he mean by the words "to all my blood kind in Louisiana and Texas?" The words "blood kind" in this clause unquestionably is the equivalent of "blood kin." (See Century Dictionary.) So that the clause should be read "To all my blood kin in Louisiana and Texas." When the testator died, the two halfbrothers and one nephew resided in Louisiana, and the rest of the said kindred resided in Texas. In common acceptation, the being a man's kindred is being of his blood, and it is in that sense that the word "kindred" is used in the statute of distributions, so that a bequest to "kindred" is understood to refer to blood relations, without the use of the word "blood." Roper on Legacies, 118.

A devise or bequest to "next of kin" is understood to mean the nearest blood relation in equal degree of the propositus, such relations being determined without regard to the statute of distributions. Jarman on Wills (1893), vol. 2 112; Hawkins on Wills, 97; 1 Roper, 119.

A devise or bequest to "relations" simply applies only to the person or persons who would, by virtue of the statute of distributions, take the estate under an intestacy, either as next of kin or by representation of next of kin. Such is the construction by a long line of decisions, English and American, adopted for convenience, and to prevent a bequest, so made, from being void for uncertainty. 2 Jarman on Wills, p. 130; 1 Roper on Legacies, 100; Schouler on Wills, sec. 537.

The word "blood," mentioned in the statutes of descent and distribution, has been uniformly construed to include, in its technical, as well as in its natural sense, the half blood. 4 Am. Eng. Enc. Law, 585; Anderson v. Bell, 29 L. R. A., 541; 1 Roper Leg., 119.

We have not been able to find, after diligent search, a single case in the books wherein language in a devise or bequest exactly like that under consideration has been construed. Had the devise in question been to "next of kin," the half brothers would have taken to the exclusion of the nephews and nieces of the whole blood. 2 Jarman on Wills, 112; 16 Am. & Eng. Enc. Law, 705; Locke v. Locke, 45 N. J. Eq., 97; 1 Roper, 19. Had the devise in question been simply to "relations," the half brothers would have taken in common with the nephews and nieces of the whole blood, under the statute of distributions of England, and under that of most of the United States. 2 Jarman on Wills, 135; 16 Am. & Eng. Enc. Law, 704; Schouler on Wills, sec. 537.

Since, therefore, the nephews and nieces of the whole blood of J. C. Lusby would have taken his estate, under the Mississippi statute, had he died intestate, to the exclusion of his half brothers, and since a bequest to "relations" includes only those entitled to take under the statute of distributions, appellees contend that they are entitled to the whole estate to the exclusion of the half brothers. If that be true, and if it be held that the meaning of a bequest to "relations" would vary according as local statutes of distributions may vary, so that the word "relations" would include a certain class under one statute, and a different class under another statute, the devise in question is not to "relations," but to "blood kin," and not only to "blood kin," but "all my blood kin in Louisiana and Texas," which conveys quite a different meaning, as would be commonly understood from a devise to "relations" simply.

It is well settled that, where a bequest is to "relations," and the testator has fixed, in the will, a test by which the number of relations, intended by him to receive his estate, can be ascertained; or where a testator has shown an intention in his will to comprehend relations who would not be entitled to take under the statute of distribution, his intention will prevail, and those entitled to take under the will, will not be limited to those who would be entitled to take under the statute of distribution. 1 Roper on Legacies, 112. Where it is stated that a legacy to such relations of the testator as are not worth five hundred pounds would entitle all relations to the testator, who could show that their property is within the sum mentioned, to share in the legacy, without regard to the limit prescribed within the statute of distribution. See, also 4 Vesey, Jr. P., 719, note 5.

In Greenwood v. Greenwood, 1 Brown's C. C., 32, a testatrix bequeathed her estate to be divided between her "relations" --i.e., the Greenwoods, the Everits, and Dows. The Everits, although not related to the testatrix, within the statute of distribution, were permitted to take jointly with their next of kin, the Greenwood's and the Dows, on the ground that the word "relations" is explained by the context of the will, and extended beyond the confines of the statute. In that case the testatrix named a family not related to her within the statute of distribution, and thereby manifested her intention to go beyond the confines of the statute. So Lusby, by the devise in question, manifested his intention to go beyond the confines of our statute by devising his estate to "all his blood kin in Louisiana and Texas." The beneficiaries intended by a will may be ascertained as well by a description of their locality as by name.

As Lusby mentioned the persons intended by him to take under his will as being in Louisiana and Texas, and as his two half brothers and one nephew lived in Louisiana, and the rest of his blood kin lived in Texas, it must be presumed that he was aware of their locality; and, therefore, as he knew that only three of his blood kin were in Louisiana, and that two of these were his half brothers, he surely intended to include them, when he said "to all my blood kin in Louisiana and Texas."

The intention of the testator, in the construction of a will, is the great criterion, and courts strain to discover his intention. Rules of testamentary construction have but a limited and subordinate application. Certain words and expressions, as given above, when standing unexplained, acquire from precedents a somewhat definite meaning; but if it could be once a question, whether or not technical phrases should conclude a testator's intention, it is no longer doubtful that his intention is paramount. The same literal expression in two wills might demand the same construction; but unless the two wills are identical throughout, and dispose of similar fortunes under similar circumstances, a precedent fails of its full force. Schouler on Wills, sec. 462; Boston, etc., Co. v. Coffin, 8 L. R. A., 740; Masterson v. Townsend, 10 L. R. A., 816; Vannerson v. Culbertson, 10 Smed. & M., 150; Sorsby v. Vance, 36 Miss. 564; Tatum v. McLellan, 50 Miss. 1.

Shields & Boddie and W. S. & Farrar L. McCain, for appellees.

We insist that the meaning of the will is the same as if it had been couched in these words: I, J. C. Lusby, declare this to be my last will and testament: I constitute my friend, W. M. Paine, my executor, believing him to be the most suitable and competent person to take care of my creditors and wind up my affairs, and I direct that no bond be required of him. My heirs live in Louisiana and Texas, and I desire that my property be divided among them as if I had died intestate.

The original instrument shows on its face that it was drafted by one of very limited education, and it is obvious that the word "kind" is the word "kin" misspelled. As all the heirs, both of the whole blood and of the half blood, resided in Louisiana and Texas, the issue narrows itself down to the single question whether the word "kin," as used in the will is, as we insist it is, the legal equivalent of the word heirs. It is evident that the sole object of the testator, as well as of the draftsman of the will in this particular case, was to name the person who should wind up the affairs of the testator. That being accomplished, the testator had no further will to express.

The adjective "blood," as used in the alleged will, seems to be meaningless. If a bachelor has kin other than blood kin, it is unnecessary, of course, for him to use any word in his will to qualify kin if he wishes them to take his property, since the statute does not give any part of a bachelor's estate to those who are related to him by mere affinity.

Where a man does not mean anything by the use of a particular word in his will, it is a hopeless task for the court to undertake to extract the meaning of that word, and we really think that in the use of the word "blood," the testator in this case, meant nothing more than is implied by the word kin; but if any meaning whatever can be imputed to the word "blood," it could only have been used to emphasize the idea that the testator wished his property to go to his heirs of the whole blood as distinguished from those of the half blood. If he meant kindred of the whole blood as distinguished from those of the half blood, the phrase he used to express the idea is a very awkward one, we admit, but if "blood" as used in this will does not mean whole blood, then it does not mean anything.

We think it will be agreed also that there is a common impression among laymen that one cannot have heirs if he has never had children, and in this...