Rose v. Rambo

• Decision Date: 23 June 1919
• Docket Number: 20671
• Citation: 82 So. 149,120 Miss. 305
• Court: Mississippi Supreme Court
• Parties: ROSE ET AL. v. RAMBO

82 So. 149

120 Miss. 305

ROSE ET AL. v. RAMBO

No. 20671

Supreme Court of Mississippi

June 23, 1919

Division A

1 WILLS. Construction. What law governs.

Where the laws of different jurisdictions are involved in the interpretation of a will for the purpose of ascertaining the testator's intention as therein expressed, the words used by him therein, in the absence of circumstances indicating that he had the law of an another jurisdiction in mind, must be interpreted in accordance with the law of his domicile.

2. WILLS. What law governs. Devise to heirs.

Under 4 Shannon's Ann. Code of Tenn., section 4163 et seq., a devise of lands in Mississippi to the "heirs" of a Tennessee testator's daughter living in Tennessee was to the person or persons appointed by the law of Tennessee to succeed to her real property should she die intestate; such persons in this case being her sister and brother and not her husband.

HON JOE MAY, Chancellor.

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

Suit by Anna E. Rose and others against T. D. Rambo. From a decree dismissing the bill, plaintiff appeals.

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

Reversed and remanded.

St. John Waddell, for appellants.

First. The learned counsel who wrote reply brief in answer to the question as asked by the court as to whether the statutes of the state of Tennessee include the husband as an heir of the wife, admits that they do not except in cases where there are no other heirs capable of inheriting,

He further admits that under the laws of descent and distribution in the state of Tennessee, the husband only takes an estate by courtesy in the lands of his deceased wife where she has other heirs capable of inheriting same, and he further admits that if the land in controversy was in Tennessee and the wife having only a life estate in it, the husband would have no interest in it but it would go to the brothers and sisters.

Learned counsel further admits that the word "heirs" in Tennessee is usually construed to mean those persons who would inherit particular property, whether real or personal according to the laws of descent and distribution as to that particular property.

These admissions answer fully the second question asked by the court as we have heretofore answered it, and in support of which we cited the statutes and, decisions of the state of Tennessee.

Second. As to the first question asked by the court as to whether the language used should be interpreted in accordance with the laws of Tennessee or those of Mississippi, the position is taken by learned counsel that it should be construed in accordance with the laws of the latter state, and further on in his brief, he gives his reason for this as being because the land is situated in the state of Mississippi because, first, the word "heirs" in Tennessee has not such a fixed and settled meaning as to make it a rule of property; and, second, because the case, at bar is governed by the Mississippi statute abolishing the rule in Shelley's case.

As to learned counsel's first reason, it is possible we may not have understood the same correctly, but if we have, then we beg to say that the word "heirs" simply designates a class of persons and is never used for the purpose of controlling title to property, but is simply used in wills, conveyances or statutes to designate those who shall or shall not take property by inheritance. Just what application the decision in Ball v. Phelan, cited by learned counsel can have on this proposition, we confess we are unable to see.

Learned counsel's second reason that the language used in the will under consideration should be interpreted according to the laws of the state of Mississippi because this case is controlled by the statutes of that state, is equally as hard to understand.

The statute of Mississippi abolishing the rule in Shelley's case is in aid of wills that devise a life estate with remainder over to the life tenant's children, or issue, or heirs at law, and while we do not admit that this statute is fully applicable to this case, yet, assuming for argument that it is applicable, we respectfully submit that it throws no light on the question of who Dr. Dunlap meant and intended in the use of the word "heirs" as used in his will. Counsel for appellees evidently takes the position that because the statute of Mississippi abolishing the rule in Shelly's case made valid a devise of property to one for life with remainder to his heirs, and that the heirs would take as purchaser by virtue of the remainder so limited to them, therefore that whenever thereafter a will should contain a devise of this kind of lands in Mississippi, that the word "heirs" should be interpreted to mean those contemplated by this statute, and would override the intention of the donor in making the devise as to who he meant by the word "heirs."

In other words, the intention of the donor in designating persons to take the remainder estate is to be supplanted and overruled, and new persons substituted by virtue of the statute.

We respectfully suggest that the pole star interpreting the language used in wills is to first ascertain from the whole instrument and the surrounding circumstances, the intention and purposes of the testator, and when this intention and purpose is once ascertained and does not contravene any settled statute or rule of public policy in the state where the land is situated, that this intention rises to the dignity of the law of the case and is controlling and all rules of construction become subservient to it.

No better exposition of the law on this proposition can be found than in the language used by Judge WHITFIELD in delivering the opinion of this court in the case of Ball v. Phelan, where he went into an exhaustive discussion of this principle, and this, too, in a Tennessee will devising lands situate in Mississippi, in which he quotes with approval the rule set forth in 22 Am. & Eng. Enc. of law (2 Ed.), page 1366; Ball v. Phealan, 94 Miss. quotation from bottom page 339.

Under the law of Tennessee, as admitted by counsel in his reply brief in the case at bar and under the statutes and judicial decisions of the state of Tennessee, being the law of the domicile of the testator of the will under consideration the next of kin or the brothers and sisters of Mrs. Rambo take the property in controversy as her heirs at law.

Learned counsel speaks in his brief of construing the word "heirs" and admits that under the judicial decisions of the state of Tennessee, the gift over to the heirs of Mrs. Rambo would be those who, in the absence of a will, would inherit the property under the laws of descent and distribution and claims that in the case at bar her husband, the appellee, would be the only heir, evidently meaning under the law of Mississippi, as he would be the only one who would inherit from his wife in that state, but that if construed under the laws of Tennessee, then he would not inherit or be the heir.

In this case the appellee would not inherit anything from his wife under the laws of Mississippi because she never owned anything but a life estate in the land; therefore, if Mr. Rambo, the appellee, takes any interest at all in the land he must do it under the will of Dr. Dunlap and must demonstrate that because he would have been a forced heir in Mississippi to property there owned by the wife in fee, that Dr. Dunlap intended and meant that the property in controversy should go to a forced heir of his wife instead of her natural heirs or next of kin under the general law of descent and distribution.

Again counsel for appellee says that the carrying out of Dr. Dunlap's intention according to our contention in this case, would mean that the property of his daughter would go to his heirs instead of the daughter's heirs, and that if he had intended this, he would have used the words "to my heirs forever" instead of "to their heirs forever," and that the effort of the appellants is not to give the property to the heirs of Mrs. Rambo but to the heirs of Dr. Dunlap, and if he had meant for this to be done it would have been simple for him to have said so in his will.

This is mere begging the question and is assuming that Mrs. Rambo's heirs, according to the general statute of descent and distribution of both in Mississippi and Tennessee, could not, at the same time be the heirs of Dr. Dunlap and simply because this is the case it does not militate against his intention that this should be done or prevent that intention from being a valid one and a lawful intention and perfectly natural under the circumstances.

Again counsel takes the position that the language used by Dr. Dunlap in his will would under the rule in Shelley's case, and in the event of the death of Mrs. Rambo without leaving issue of her body surviving her, having the effect of enlarging her life estate into a fee.

The rule in Shelley's case has long since been abolished in Tennessee and some of the cases referred to by counsel in his reply brief are cases where an estate for life was given with remainder over to the heirs, or to the children, or to the lawful heirs of the first taker, and these devises have been uniformily upheld in Tennessee. Particularly on this point see the case of Stewart, et al., v. Drake, et al., 1 Higgins C. C. A. (Tenn.), page 332, and the numerous authorities cited.

This very proposition was made by learned counsel in the case of Ball v. Phelan, supra, wherein there was a devise to Julia Phelan for life and at her death to her children, and in default of children, or in the event of their dying unmarried before reaching the age of twenty-one years then with remainder over to Bettie Selden. The...