Vaiden v. Hawkins

Chalmeks, C. J., delivered the opinion of the court. The appellants, who are two of the heirs-at-law of the late Dr. Cowles Meade Vaiden file this petition, seeking distribution to themselves of such portions of his estate as they claim are not disposed of by his last will and testament, as also of a legacy of fifty thousand dollars, bequeathed by him to the State of Mississippi for certain purposes, and upon certain conditions, — 415 — which were by the State rejected. The validity of their claim depends upon whether the will contains any clause by which the general residuum of the estate, after the deduction of special legacies, was intended to pass. Such residuary clause, if to be found at all, is found in the last (eighth) item of the will. The will is holographic in fact, though attested by witnesses, and is entirely destitute of punctuation marks, except an occasional straight line or dash which is used for a period. We give the eighth clause, however, punctuated and divided as it is conceded that it should be. “ 8. My interest in the house of Yaiden, Hawkins & Roberts of ÍT. 0. amounting to seventy-five thousand dollars, I wish to remain in the house, until the dissolution of said co-partnership. I, with other assets in said house, hope to realize one hundred thousand dollars from this source. I desire my executor to propose to the State of Mississippi to set aside ($50,000) fifty thousand dollars, and T a like amount ; the State to pay annually eight per cent interest, sacred to the education of poor young men at Oxford, on my mess system, which I hope to live long enough to explain and show its great utility and benefit to the State at large. This being consummated, after the above appropriation out of my assets, I desire the residue to go to heirs of my sister, Mrs. E. L. Herring, less five thousand dollars, for the erection of a suitable monument to mark the spot where I may be buried. I desire my dear wife to have inscribed on my tomb whatever she may desire, and I further authorize her to use any amount, additional to the five thousand dollars, she may wish. I appoint my dear wife my executrix, and R. R. Hawkins my executor, and in no wise to give bond and security for the fulfilment of their duties. I also lend to T. J. Phillips, his natural life, the land in section twelve I bought of M. A. Wilson early this year, and that bought of O. O. Caldwell and Jo. Wilson, making about two hundred and seventy acres, upon which Charles Davis, Jo. Christian and Peter Williams reside, during his natural life, and at his death in fee to his. children, if any, and if none, to those of his sister. Given under my hand and seal the day and date above written. COWLES MEADE VAIDEH. [seal.] Witness J. W. Harvey, C. M. Yaiden, Jr., S. E. McConnico. It will be observed that the clause commences with an allusion to the interest of the testator in the mercantile firm of Vaiden, Hawkins & Roberts, of New Orleans, which is stated to be seventy-five thousand dollars. This he directs to be left — 416 — in the house until its dissolution, a period in the future presumably fixed by the articles of copartnership. He then intimates that, in addition to his interest in the firm, he has further individual property in the custody of' the house, from which, combined with his other assets in the house, he hopes to realize one hundred thousand dollars. Immediately follows the bequest to the State, or rather a direction to his executors, to propose to the State that it shall set aside fifty thousand dollars, and he (or rather his executors) a like amount. Upon the aggregate of which two amounts, the State shall annually pay interest at the rate of eight per cent, to be expended in the education of poor young men at the State university at Oxford, upon a scheme devised by him which he hopes to live long enough to explain. The testator died a few weeks after the preparation of his will, and the legislature rejected the proposition of his executors to carry out this portion of the will. The will continues in these words “this being consummated, after the above appropriation out of my assets, I desire the residue to go to heirs of my sister, Mrs. E. L. Herring, less five thousand dollars for the erection of a suitable monument,” &c. Then follows the appointment of his executors, who are in no event to give bond; and the will closes abruptly with a devise of a tract of land to T. J. Phillips and his children. There are, in previous clauses, numerous special legacies and devises; but it is admitted that one tract of land and much personalty are undisposed of unless they pass to the heirs of Mrs. Herring under the eighth item. Did Dr. Vaiden die intestate as to any portion of his estate not specifically disposed of by other clauses of his will, or did such portions pass, under the sentence last quoted, to the heirs of Mrs. Herring? That is the question presented by this litigation. The theory of the appellants is, that the whole of the eighth item of the will, down to the appointment of the executors, is devoted to the disposition of the New Orleans property, which, for the purpose of making such distribution of it as he desired, is estimated and fixed at one hundred thousand dollars. Out of this New Orleans property he had already by a previous clause directed that a ten thousand dollar United States four per cent bond should be purchased for his wife. By the eighth — 417 — item, say the appellants, he disposed of the remainder of that property, appropriating out of it the sum of fifty thousand dollars for the proposition to be made to the State, and the further sum of five thousand dollars, or such additional amount as his wife might desire, for the erection of a monument over his grave; leaving the residue of it to go to the heirs of Mrs. Herring. The appellants insist further that the proposed legacy to the State, and the sum set apart for the monument, are specific and demonstrative in their character, and that, by fixing or estimating the entire amount of the fund out of which they were to come, he thereby signified his intention, or rather that the law will from these- circumstances deduce the legal conclusion, that, in the event of the failure of either of the specific legacies to take effect, such legacy will lapse to the heir-at-law and not to the residuary legatee of the fund. The three principal things relied on in support of this construction are, first, the otherwise unnecessary act of the testator, in fixing an estimate upon the value of the New Orleans property ; second, the immediate juxtaposition of the proposition to the State with this estimate of the value of the New Orleans property; and third, the use of the word “ assets ” in speaking of the legacy to the State as being appropriated out of “ my [his] assets; ” which same word had indubitably been used a few lines above, as referring exclusively to the New Orleans property, from which use of it it is argued, that, in the second instance, it was employed as pointing to the same fund. Suggestive as these things may seem, they are not conclusive, and are not sufficient to overcome the strong presumptions of law against this construction. Why the testator chose to speak of the probable value of the New Orleans property, does not clearly appear, but the fact that he does so, is not enough of itself to indicate that he thereby intended to segregate it from the balance of his estate, and to so deal with it that the legacies immediately following its mention should be carved out of it alone, and should be carved out in such manner that they should wholly fail if it failed, or abate in such proportion as it failed to come up to the estimate placed upon it, but in no event should go beyond the amounts severally specified, nor should the residuum even be — 418 — increased by the lapse of any one of the specific legacies, but that the legacy so failing to take effect should pass to the heir-at-law. Cases in which a construction so rigid as this has been placed upon a testamentary disposition are rare and exceptional, and nothing short of an intention clearly and unmistakably expressed will support them. Such constructions, it is said, “ have not been well received by the courts or the profession.” 2 Redfield on Wills (2d ed.) 120. The juxtaposition of the proposed legacy to the State with the allusion to, and estimate of, the New Orleans property would be potent, if the whole clause was unmistakably devoted to a disposition of that property, but clearly this is not so. The testator seems to have made this final clause of his will a receptacle into which he has crowded every testamentary desire not elsewhere expressed. Thus his instructions that his interest in the mercantile firm should continue there, his proposition to the State with reference to the education of poor young men at Oxford, the monument to be erected over his grave, the appointment of his executors, who should give no bonds, and the devise of land to Phillips, are all found in this clause. It seems most improbable that he intended to make the provision for his tomb, the cost of which beyond five thousand dollars was left wholly discretionary with his wife, a charge upon the New Orleans property alone, and entirety dependent upon that property. It is hardly less so, that the legacy to the State was-likewise so designed. There were ample assets belonging to his estate outside of this fund for the accomplishment of these purposes, and there is nothing to indicate that these two schemes depended for either their extent or their existence on any particular portion of his estate. If they had been found in different clauses of the will, such an idea would probably never have occurred to anybod3r, and the argument from juxtaposition is, we think, overthrown by the heterogeneous character of other provisions contained in this final clause. We attach little importance to the fact that the testator used the words “assets,” both in speaking of the New .Orleans property, and in referring to the legac37 to the State, as being appropriated out of his “ assets.” The word (derived from — 419 — the French asses, enough), is given by both legal and literary lexicographers the double signification of the property of a deceased person appropriable to the payment of his debts, and the entire property of a mercantile firm or trading corporation; but at this day these are not two different meanings, but rather one and the same idea applied merely to different things. All the property of a deceased person (save the small amount exempt by law) is appropriable to his debts; and the same thing is true, without the exemptions, in reference to the property of a mercantile firm or trading corporation, so that the term was equally applicable either to the New Orleans property or to the entire estate. It is synonymous in both cases with the word “property,” and certainly, if the latter word had been used, no deduction favorable to the appellants’ construction could have been thence inferred. If it was intended to use the word in both instances, as referring each time to the same specific property, it seems most probable that the second time some such expression as “such assets” or “said assets ” would have been employed, instead of the more general and all-embracing term “ my assets.” We think the utmost that can be said in this connection is, that the testator looked to the New Orleans property as affording his executors a convenient and ready source for carrying out his educational and monumental plans, and he may have had that property in contemplation when he penned these lines, but we fail to see that he made the one dependent upon the other, of that he so eliminated the New Orleans property from the body of his estate, as that it should be administered and dealt with as a thing apart from all else. Since one dollar is as valuable as another, the courts never construe pecuniary legacies as specific, unless clearly so made by the language of the will, and they lean even more strongly against affixing such a construction to a will, as to produce partial intestacy. It is doubtless true as argued by counsel that this indisposition was much strengthened in early times by the common-law rule that all property not effectively disposed of went to the executor in his own right, and therefore, to prevent the injustice to the heirs often wrought by this rule, every, device was adopted to defeat it. But it rests upon the firmer — 420 — suggestion of common sense, a suggestion now and always weighty, that when a man rejects the disposition of his property which the law makes, and puts himself to the trouble of preparing a will, he does not intend to leave himself intestate as to any portion of his estate. Whatever may have been the origin of the doctrine, or the reasons by which it may be supported, it is no less true now than formerly that the courts are reluctant to adopt a construction that will lead to partial intestacy, and will not do so, Judge Redfield says, “ unless absolutely forced upon them.” 2 Redfield on Wills (2d ed.J), 116. Whenever therefore any residuary words are found in a will, they will be held to convey the entire estate, not otherwise disposed of, unless it can be shown that they are clearly intended to apply to the residuum of a particular portion only. 2 Redfield on Wills, ubi supra, and cases cited; 2 Jarman on Wills (5th ed.), 364 et seq., and cases cited. It is urged that the testator affirmatively shows in his will that he did not himself understand, that he was finally disposing of his entire estate, because, in the latter portion of its third clause, he uses the following language: “ Having provided amply for Virginia C. Vaiden and Emily P. Evans, daughters of my sister Mrs. E. C. Phillips, I give them nothing more by this instrument unless specially mentioned at a subsequent period.” It is insisted that this language shows that the testator did not then intend to complete his testamentary intentions, but expected at some “ subsequent period ” by a codicil to dispose of that portion of his property, which he then reserved for future action. We think that his meaning was ■that unless at some subsequent period in the preparation of the will he indicated an intention to give these parties something, they were to expect nothing. This seems apparent from the use of the word “mentioned.” When the writer of a document speaks of something to be subsequently “mentioned,” we must understand him as referring to something which is to be thereafter alluded to in that paper. If it were something to be mentioned in some other paper, to be prepared at another time, the language would be different. He would probably say “ unless at some future period I shall otherwise direct or determine,” or an equivalent form of expression. — 421 — Upon the whole we cannot say that the appellants have met the burden imposed by law upon them of showing clearly that the testator died partially intestate, or that the residuary words found in the last clause of the will were intended to apply to a particular fund only. On the contrary, we are of the opinion that the heirs of Mrs. Herring are the true residuary legatees of the entire estate, and as such entitled to take all the property belonging to it not otherwise disposed of, including the lapsed or non-effective legacy to the State. Our own labors in the case have been greatly lightened by the exceptionally able and exhaustive arguments, oral and written, of the counsel on either side. Decree dismissing petition affirmed.