Seal v. Seal, 48008

• Decision Date: 28 April 1975
• Docket Number: No. 48008,48008
• Parties: H. G. SEAL, Jr. v. Robert B. SEAL and Martha Joe Seal McCarthy.
• Court: Mississippi Supreme Court

Page 19

312 So.2d 19

H. G. SEAL, Jr. v. Robert B. SEAL and Martha Joe Seal McCarthy.

No. 48008.

Supreme Court of Mississippi.

April 28, 1975.

Rehearing Denied May 19, 1975.

Fant, Crutcher, Moore & Spencer, Holly Springs, Fox & Sanderson, Houston, for appellant.

Mitchell, Rogers & Eskridge, Tupelo, for appellees.

Before PATTERSON, SMITH and BROOM, JJ.

PATTERSON, Justice, for the Court:

This suit involves the interpretation of the last will of Willie Mayne Seal which was admitted to probate by the Chancery Court of Lee County. The will is in the handwriting of the testatrix who was competent to execute the instrument.

H. G. Seal, Jr., the appellant, and Robert B. Seal and Martha Joe Seal McCarthy, the appellees, are the surviving brothers and sister and heirs of Willie Mayne Seal who was never married.

The inventory of H. G. Seal, Jr., the executor, reveals that the will disposed of, in addition to real property, the following:

1. Cash on hand and in bank $ 9,904.84

2. Common stock and similar

securities 180,399.12

3. Promissory notes 12,057.12

4. Furniture, furnishings and

other tangible property 10,491.37

5. Miscellaneous personal

property, including coin

collection 585.70

The disposition of the tangible property, 4 and 5 above, is the basis of this suit. The resolution of this issue requires Items IV and V of the will to be reviewed in detail.

The material portions of the will, with paraphrasing for continuity, follow:

I. (A devise of $1000 to each of eighteen designated persons.)

II. (The forgiveness of a note for $450.)

III. (A devise of a nine-diamond gold ring.)

'IV. I hereby will, devise and bequeath all the real estate, cash, notes, Trust Deeds, stocks, or anything that I own at my death not disposed of in this will that I die seized and possessed of to be equally divided among the following, share and share alike: (Emphasis added.)

Robert B. Seal.

H. G. Seal, Jr.

Martha Joe Seal McCarthy.

. . . (Statement of a contingency not presently applicable.)

'V. I hereby will, devise and bequeath all the remaining personal property not otherwise disposed of herein to my Executor, and he shall have the right to dispose of same as he sees fit.' (Emphasis added.)

VI. (H. G. Seal, Jr. designated as executor.)

'VII. Should any of my heirs or any of the parties named herein as legatees or devisees contest this will or file petition to construe the same, then his or her interest in my estate shall be at an end, and held for naught and the same shall be divided equally among my heirs as designated and named in Item IV herein.'

'Witness my signature, this July 16, 1971.

/s/ Willie Mayne Seal'

The chancellor was of the opinion there was a conflict between Items IV and V of the will and adopted the rules of construction applicable to ambiguous instruments to conclude that the three devisees of Item IV should share equally the personal property of the testatrix. He held that the devise to the executor in Item V appeared to have been written as an afterthought of the testatrix, neither adding to nor taking away from the intention expressed in Item IV. Our study of the instrument persuades us to a different conclusion.

Prerequisite to the use of rules of construction for adjudicating the intention or meaning of ambiguous instruments is an initial determination that there exists an ambiguity. The employment of the rules of construction is never permitted to defeat the plain, expressed intention of the testator. In Bullard v. Bullard, 132 Miss. 544, 97 So. 1 (1923), the rule is stated thusly:

. . . (I)t is the duty of the court to ascertain the controlling intention of the testatrix and to enforce such intention, provided it is lawful, and it is the duty of the court to so construe the will, if possible, as to make the instrument valid. The intention of the testatrix is to be ascertained from the whole will and from a consideration of all the provisions of the instrument taken together, and, if the language of the will is clear, definite, and unambiguous, the court must give to the language its clear import. If, however, the language of the will is reasonably susceptible of two different constructions, one of which will defeat and the other sustain the provisions, that construction should be adopted which will sustain and uphold the will in all its parts, if it can be done consistently with the established rules of law. 132 Miss. at 549, 97 So. at 2.

See also In the Matter of the Estate of Dennis P. Granberry, Deceased: Betty G. Burgess et al. v. William S. Granberry et al., Miss., 310 So.2d 708 decided March 31, 1975, and Carlisle v. Carlisle, 233 So.2d 803 (Miss.1970).

From these and other authorities we discern that rules of construction have application to project the intention of a testator by extrapolation, but only when the true intention is incapable of being ascertained from the express language in the instrument by reason of omitted or conflicting words or phrases, or when an incomplete expression or unforeseen circumstance...