Strickland v. Delta Inv. Co.

Decision Date13 November 1931
Docket Number29618
Citation163 Miss. 772,137 So. 734
CourtMississippi Supreme Court
PartiesSTRICKLAND et al. v. DELTA INV. CO.

Division B

1 WILLS.

If from entire will, testator's meaning is doubtful circumstances surrounding testator when making will and his relation to interested parties will be considered in determining whether terms were used in legal sense.

2 WILLS.

Where, from entire will, testator's meaning is doubtful, extrinsic evidence, including evidence that testator himself wrote will and was inexperienced in such matters, is admissible to clear up ambiguity.

3. WILLS.

In determining whether words were used in technical sense, court should consider whether testator was familiar with technical meanings.

4. EVIDENCE.

It is common knowledge that terms "heirs" and "children" in popular sense have same significance.

5. WILLS.

Where consideration of whole will renders it uncertain whether testator used term "heirs" as meaning children, extrinsic evidence is admissible.

6. WILLS.

Court construing will should be placed as fully as possible in situation of testator.

7. WILLS.

Use of different words in will applying to same subject-matter indicates that testator had in view different results.

8. WILLS.

Devise of land without words of inheritance vests fee-simple title (Code 1930, section 2112).

9. WILLS. Clause providing that remainder of estate should be divided between testator's brother for his daughter named and wife's niece and her heirs was ambiguous, and evidence regarding circumstances surrounding testator when malting will was improperly excluded.

The clause in question was ambiguous because testator provided that his niece should have one-half of remainder of estate and made no reference to her heirs, whereas, he provided that his wife's niece and her heirs should have the other half to be divided between them. The clause was also ambiguous because of the word "divided," and the ambiguity was not cleared up by consideration of the whole will.

HON. M. B. MONTGOMERY, Chancellor.

APPEAL from chancery court of Holmes county HON. M. B. MONTGOMERY, Chancellor.

Petition by the Delta Investment Company, administrator of the estate of Mrs. Sarah A. Edwards, deceased, against Ivo Strickland and others, to have the will of R. M. Edwards, the late husband of Mrs. Sarah A. Edwards, construed. From the decree construing the will, defendants appeal. Reversed and remanded.

Reversed and remanded.

Boothe & Pepper and Ruff, Johnson & White, all of Lexington, for appellants.

A testator may ignore the technical meaning of the word, heirs, and in its interpretation such a meaning may be given it as the testator evidently intended it should have, as disclosed by the whole instrument. As a mere matter of construction the word "heir" may be interpreted as the equivalent of "child" when the context so requires.

Byrd v. Henderson, 139 Miss. 140, 104 So. 100; Harkelroad v. Bass, 84 Miss. 483, 36 So. 537; 29 C. J., page 301; Davenport v. Collins, 95 Miss. 358, 48 So. 733; 28 R. C. L., [163 Miss. 774] p. 248; Wilberding v. Miller, 88 Ohio St. 609, 106 N.E. 665, L.R.A. 1916A. 718; MacLean v. Williams, 116 Ga. 257, 42 S.E. 485, 59 L.R.A. 125; Moon v. Stewart, 87 Ohio St. 349, 101 N.E. 344; Ann. Cas. 1914A 104, 45 L.R.A. (N.S.) 48 and note; Wallace v. Martin, 106 Tenn. 341, 61 S.W. 73, 82 A. S. R. 882; Campbell v. Noble, 110 Ala. 382, 19 So. 28; Lockwood's Appeal, 55 Conn. 157, 10 A. 517; Seymore v. Bowles, 172 Ill. 521, 50 N.E. 122; Mace v. Cushman, 45 Me. 250; Castleberry v. Stringer, 176 Ala. 250, 57 So. 849; Gardiner v. Fay, 182 Mass. 492, 65 N.E. 825; Croom v. Herring, 11. N.C. 393.

If the same phraseology was not used with reference to the devises to Annie Mary Edwards, and Mrs. Pearlie Strickland, there should be some reason accounting for the difference for it is presumed that every word is intended by the testator to have some meaning.

28 R. C. L., page 217, par. 176; Ball v. Phelan, 94 Miss. 293, 49 So. 956, 23 L.R.A. (N.S.) 895; Archer v. Palmer et al., 112 Ark. 527, 167 S.W. 99, Ann. Cas. 1916B, page 573; McCormick v. Reinberger, 192 Ky. 608, 234 S.W. 300; Tea v. Millan, 257 Ill. 624, 101, N.E. 209, 45 L.R.A. (N.S.) 1163.

The use of different words in a will, applying to the same subject-matter, indicates that the testator had in view different results.

Williams v. Fundingsland, 74 Colo. 315, 221. P. 1084, 63 A.L.R. 77.

If the terms are plain and unambiguous taking the whole will into consideration, the court would give them their legal meaning, but if an examination of the whole will shows that it is doubtful what meaning the testator intended to convey by the will, the circumstances surrounding the parties may be looked to to determine whether the words were used in their legal signification or whether they were intended to be given a different meaning.

Byrd v. Henderson, 139 Miss. 140, 104 So. 100; 40 Cyc., page 1431.

But wills are, of all classes of legal instruments, least to be governed in their construction by their technical terms. Because wills here are most frequently drawn by persons unacquainted with legal phraseology and ignorant of the meaning which the law attaches to the words they use. Especially where a will bears earmarks of having been drawn by a layman, and not by a lawyer, the court, in the endeavor to arrive at the intent of the testator, will not view the language technically but liberally and with reference to its popular meaning.

28 R. C. L., page 224, par. 185; Giles. v. Little, 104 U.S. 291, 26 L.Ed. 745; Bosley v. Wyatt, 14 How. 390, 14 L.Ed. 468; Westcott v. Binford, 104 Ia. 645, 74 N.W. 18, 65 A. S. R. 530; Kelly v. Reynolds, 39 Mich. 464, 33 Am. Rep. 418; Lightfoot v. Mayberry, 1914, A. C. 782, 83 L. J. Ch. (N.S.) 627, 111 L. T. (N.S.) 300, 58 Sol. J. 609; Ann. Cas. 1915A 464, 7 British Rul. Cas. 957; Moon v. Stewart, 87 Ohio St. 506, 101 N.E. 1128, Ann. Cas. 1914A 104, 45 L.R.A. (N.S.) 48; Com. v. Wellford, 114 Va. 372, 76 S.E. 917, 44 L.R.A. (N.S.) 419; Scott, Guardian v. Nelson, Executor, 3 Porter, 452, 29 Am. Dec. 266.

In determining whether or not certain words were used in their technical sense, the court should consider whether the drawer of the will was or was not familiar with the technical meaning of the words or terms used.

40 Cyc., page 1399; Perry v. Bulkley, 82 Conn. 158, 72 A. 1014; Hewitt v. Green, 77 N.J.Eq. 345, 77 A. 25; In re Bennett, 134 Cal. 320, 66 P. 370; Cross v. Hoch, 149 Mo. 325, 50 S.W. 786; Hamilton v. Richie (Eng.), A. C. 310.

A court in construing a will is not bound to shut its eyes to the state of facts under which the document was made. On the contrary, an investigation of such facts often materially aids in elucidating the scheme of disposition which occupied the mind of the testator. To this end it is obviously essential that the judicial expositor should place himself as fully as possible in the situation of the person whose language he has to interpret, and, guided by the light thus thrown on the testamentary scheme, he may find himself justified in departing from a strict construction of the testator's language without allowing conjectural interpretation to usurp the place of judicial exposition.

Dollander v. Dhaemers, 297 Ill. 274, 130 N.E. 705, 16 A.L.R. 8.

Barbour & Henry, and J. G. Holmes, all of Yazoo City, Butler & Snow, and W. H. Cox, all of Jackson, and Sennett Conner, of Seminary, for appellee.

Every estate in lands granted, conveyed, or devised, although the words deemed necessary by the common law to transfer an estate of inheritance be not added, shall be deemed a fee-simple if a less estate be not limited by express words, or unless it clearly appear from the conveyance or will that a less estate was intended to be passed thereby.

Section 2112, Code of 1930.

The rule in Shelley's case is abolished.

Section 2114, Code of 1930.

Estates in fee tail are prohibited, and every estate which, but for this statute would be an estate in fee tail, shall be an estate in fee simple.

Section 2117, Code of 1930.

Mrs. Strickland was not a child or descendant of testator, and there is a lapsed legacy.

Section 3553, Code of 1930.

At common law a grant to A and the heirs of his body conveyed a fee conditional. Under the statute de bonis conditionalibus it conveyed a fee tail, but under section 2765, Code of 1906, Hemingway's Code, section 2269 (2117 of the Code of 1930) it conveys a fee simple.

Liberty Bank v. Wilson, 116 Miss. 377.

A legacy and devise lapsed because of the death of the devisee occurred prior to that of the testator.

Where real and personal property is specifically devised to individuals and the devise does not take effect because of the death of the devisee during the lifetime of the testator, the property mentioned in this lapsed devise descends to the heir as property undisposed of by the will.

Marx v. Hale, 131 Miss. 290.

By a bequest of all of my property to Eliza J. Haring, my sister, at her death her heirs are to have it. The sister took a fee simple title on the death of the testator.

Haring v. Flowers, 91 Miss. 242.

Technical words when used in a will should be construed according to their technical meaning, as established by reference to the science or art to which they are peculiar, unless it appears from the will that they were used in a different sense, or unless a different construction is necessary in order to give sense to the will.

28 R. C. L., section 185.

In the construction of a will it is usually presumed that the testator was acquainted with the rules of law, and that he intended to make a valid will.

And in general it may be said that a testator is presumed to have known the legal consequences of his will. The...

To continue reading

Request your trial
19 cases
  • Dement v. Summer
    • United States
    • Mississippi Supreme Court
    • 10 d1 Fevereiro d1 1936
  • Atl. Natl. Bk. of Jacksonville v. St. L. Union Tr.
    • United States
    • Missouri Supreme Court
    • 12 d1 Abril d1 1948
    ...raises the inference that a different disposition was intended. 69 C.J., p. 85; Williams v. Fundingsland, 221 Pac. 1084; Strickland v. Delta Inv. Co., 137 So. 734. (4) The court may properly consider how the parties themselves interpreted the instrument. They regarded it as operating like a......
  • Atlantic Nat. Bank of Jacksonville, Fla. v. St. Louis Union Trust Co.
    • United States
    • Missouri Supreme Court
    • 12 d1 Abril d1 1948
    ...part raises the inference that a different disposition was intended. 69 C.J., p. 85; Williams v. Fundingsland, 221 P. 1084; Strickland v. Delta Inv. Co., 137 So. 734. (4) court may properly consider how the parties themselves interpreted the instrument. They regarded it as operating like a ......
  • Tinnin v. First United Bank of Mississippi
    • United States
    • Mississippi Supreme Court
    • 11 d3 Fevereiro d3 1987
    ...in accordance with our familiar rules. See Maupin v. Estate of Perry, 396 So.2d 613, 615 (Miss.1981); Strickland v. Delta Investment Co., 163 Miss. 772, 781, 137 So. 734, 736 (1931); Weems, Mississippi Wills and Estates § 9-3, pp. 286-87 (1983). In the absence of extrinsic evidence which, w......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT