Thomas v. Thomas

• Decision Date: 05 December 1910
• Citation: 53 So. 630,97 Miss. 697
• Court: Mississippi Supreme Court
• Parties: RICHARD L. THOMAS v. J. MURPHY THOMAS, EXECUTOR ET. AL

53 So. 630

97 Miss. 697

RICHARD L. THOMAS v. J. MURPHY THOMAS, EXECUTOR ET. AL

Supreme Court of Mississippi

December 5, 1910

October 1910

From the chancery court of Lee county, HON. JOHN QUITMAN ROBBINS Chancellor.

J Murphy Thomas, executor of the will of Mary E. Thomas deceased, and others, appellees, were complainants and cross-defendants in the court below; Richard L. Thomas, appellant, was defendants and cross-complainants, dismissing the cross-bill, the defendant appealed to the supreme court.

The suit involved the construction of the will of Mary E. Thomas. The facts are stated in the opinion of the court. The fourth and fifth items of the will are as follows:

"4th. I direct that my executor can by an order from the court, and he see proper to best interest of said property (the Mary E Thomas estate) that he can sell, convey and affix my signature to said conveyances for any and all of my property now belonging to me. But he must make reinvestments from said sales, and reinvestments from said sales, and report same to the courts, also place on record all new investments to the amount of not more than $ 10, 000 nor less than $ 8, 500. This may include a part of present investment, and for his services for these transactions and attending to tis business, he can have a fee of not more than $ 200 nor less than $ 100 out of my remaining estate."

"5th. After all fees are paid and all debts that may accrue from such sales and conveyances, as described, and all expenses whatsoever are settled out of my remaining estate, I will and direct that this remaining estate, if there be any, is to be divided between F. G. Thomas, and my executor, J. M. Thomas."

Code 1906, § 3765, referred to in the opinion, is as follows:

"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; but any person may make a conveyance or a devise of lands to a succession of donees then living, not exceeding two, and to the heirs of the body of the remainder-man, and, i default thereof, to the right heirs of the donor, in fee simple."

Reversed.

Anderson & Long, for appellant.

The will creates what it denominates "The Mary E. Thomas estate, " to consist of not less than ten thousand dollars. By its provisions, Mrs. Thomas' sons are to enjoy the income from this estate during their lives. After the death of her sons, she provides that this "Mary E. Thomas estate" is to go to her grandchildren, and to be theirs when they reach the age of twenty-one years. These provisions of the will are contained in sections of the will violate our statutes and the common law against perpetuities, and that under the law, the first takers, R. L. and J. M. Thomas, get a fee-simple title to the "Mary E. Thomas estate."

It will be seen by section eleven of the will, that the grandchildren do not get the estate until they reach the age of twenty-one years; and if they do not reach that age, they fail to get the estate. Cross-limitations between the grandchildren are provided for. In case of the death of one of the grandchildren before attaining the age of twenty-one years, its share goes to its brother or sister, share alike; provided any brother or sister shall reach the age of twenty-one years: and in the event of the death of one of them, without brother or sister surviving, then its share goes to the other grandchildren, the first cousins, share and share alike, provided always they reach the age of twenty-one years. There is no provision whatever in the will as to what shall become of the "Mary E. Thomas estate" in the event all of the grandchildren die before attaining the age of twenty-one years. It is left suspended and undisposed of, so far as section eleven of the will is concerned. We maintain that sections eleven and twelve of the will, taken together in connection with all the balance of the will clearly shows that Mrs. Thomas intended to limit this estate to her own "flesh and blood" indefinitely. If we are correct in this, then it violates the common law rule against perpetuities, and her sons, R. L. and J. M. Thomas get a fee-simple title to the "Mary E. Thomas estate." We maintain that the will, taken as a whole, shows that Mrs. Thomas used the term "grandchildren" to include great-grandchildren, and on down the line of her bodily heirs to the remotest time. Putting the construction on the will which the court below does in its decree, let us see what may take place: Suppose Mrs. Thomas' sons, R. L. and J. M. Thomas, should die, each leaving surviving children, and that all of the children of J. M. Thomas should die before reaching the age of twenty-one, but after marriage, leaving issue; and that the child of R. L. Thomas should attain the age of twenty-one years; the result would be that the child of R. L. Thomas would get the whole of the "Mary E. Thomas estate, " and the grandchildren of J. M. Thomas would get nothing, because their parents had died before reaching the age of twenty-one years.

Take another illustration: Suppose all of the children of J. M. Thomas should die before reaching the age of twenty-one years, without children surviving, and the child of R. L. Thomas should reach the age of twenty-one years and marry, and then die with issue. Then clearly the surviving husband would take by inheritance the whole of the "Mary E. Thomas estate." It is clear from the will that no such condition of things as this was contemplated by Mrs. Thomas in the making of her will. It is not believable that she ever had in her mind that if one set of grandchildren never attained the age of twenty-one years, but left surviving children, those children were not to have an interest in her estate; but all of it should go to the children of her other son, who reached the age of twenty-one years. And it is not probable, in view of section twelve of her will, that she ever contemplated or intended that the husband of one of her grandchildren should get the whole of her estate, notwithstanding that there might be surviving grandchildren, the sons and daughters of her other son.

In order to give section twelve any meaning at all, the term "grandchildren" must have been used by Mrs. Thomas to include great-grandchildren and so on down the line, to the remotest degree. If the will does not mean this, then section twelve has no meaning. Where the testator has clearly shown by the use of the other words that he used the word "children" as synonymous with "descendants" or "issue" to designate or include legitimate offspring, grand-children or remoter descendants, then the term will be given that meaning. 5 Am. & Eng. Ency. of Law (2d ed.), 1087; Lilliebridge v. Adie, 1 Mason (U.S.), 224; Rhoton v. Blevin, 99 Cal. 649; Wiley v. Smith, 3 Ga. 563; Waddell v. Leonard, 53 Ga. 697; Ide v. Ide, 5 Mass. 500; Matter of Brown, 29 Hun (N. Y.) 417; Matter of Paton, 41 Hun (N. Y.) 497; Shannon v. Pickell, 55 Hun (N. Y.) 130; Mowatt v. Carow, 7 Paige (N. Y.) 328; Magaw v. Field, 48 N.Y. 668; Plamer v. Horn, 84 N.Y. 516; Hughes v. Hughes, 12 B. Mon. (Ky.) 121; Douglas v. James, 66 Ver. 21.

In a recent case this court has held the following in construing a will: "The one fundamental rule governing the construction of all wills, is to ascertain what the intent of the testator was. This intent must be gathered, it is true, from the language used in the will, and by this is meant that such intention shall be gathered from the four corners of the instrument; that is to say, from the whole will, the whole frame of the will; the whole scheme of the testator, manifest by the will, taking into consideration and giving due weight to every word in the will, etc. Ball v. Phelan, 94 Miss. 293, 49 So. 956; Jordan v. Roach, 32 Miss. 481; Dibrell v. Carlyle, 48 Miss. 691; McKenzie v. Jones, 39 Miss. 230; Sudduth v. Sudduth, 60 Miss. 366; Pressgrove v. Comfort, 58 Miss. 644; Hudson v. Gray, 58 Miss. 882; Busby v. Rhodes, 58 Miss. 237; Carwell v. Willis, 57 Miss. 555.

By the common law rule, which applies to both real and personal property, and as well to equitable and legal estates, the fee or absolute title would vest within the lives of persons in being and twenty-one years and ten months thereafter. If Mrs. Thomas, testatrix, meant, as she must have done, by the term "grandchildren" to include great grandchildren and remote descendants, this rule is violated.

The court below was clearly in error in holding that the grandchildren of Mrs. Thomas took a determinable fee, subject to be divested if they never reached the age of twenty-one years. Section eleven of the will seems plain on this point. It expressly provides that the grandchildren take nothing before they are twenty-one years of age. We do not know that this construction by the chancery court below alters the case. It is to be observed that in two events there is no limitation over of the "Mary E. Thomas estate." In the event of the death of her sons not leaving children surviving them, she does not provide for the disposition of her property. And in the event of the death of all of her grandchildren before reaching the age of twenty-one years, there is no limitation over to any one; it is left suspended and undisposed of. This is another strong evidence of the fact that she intended this property for her great grandchildren and on down, as well as her grandchildren. It showed what she meant when she said she wanted her "flesh and blood to have it."

A part of the "Mary E. Thomas estate" consists in a house and lot in Tupelo of the value of about three thousand dollars. The court below held that by her will she made personalty of this real estate; and that Code 1906, § 2765, which applies alone to real estate, has no application. By ...