L'Hote v. Roca

Mates, C. J., delivered the opinion of the court. On the 17th day of March, 1904, Octavia Maillot l’Hote, widow, executed a last will and testament. When the. will was made, the testatrix was a resident of the city of New Orleans, in the state of Louisiana. The testatrix died some time in the month of January, 1910, after which the will was duly .probated in the proper court of the parish of Orleans, in the state of Louisiana, the place of residence of testatrix. Subsequently a certified copy — 128 — of the will was duly probated in the chancery court of Hancock county, Miss. The testatrix left surviving her a number of children. We give, below a copy of the will in so far as it is involved in this case. “I am named Octavia Maillot, widow George l’Hote, I live in the city of New Orleans, I give and bequeath to my three daughters, Emma l’Hote, wife of George Y. Eoca, Louise l’Hote, wife of Frederick Tiblier, and Caroline l’Hote, widow of George W. Kelley, the disposable portion of all my property, real or personal, that I might own at the day of my death, including my tomb, situated in Metaire Cemetery to be divided among them equally. “I understand and I wish that the legacies above mentioned shall be besides and above the legacies hereinafter mentioned. “I give and bequeath the balance of all my possessions, movable and immovable, that I might leave after my death, after the legacies above shall be satisfied, and my debts paid, to my children and grand children to be partited among them in the portion established according to the Louisiana laws. ’ ’ After the probation of the will in Hancock county the three daughters filed a bill in the chancery court of Hancock county in which it was alleged that among other-property left by the testatrix was a house and lot in the town of Waveland, Miss.; that by the provisions of the will the testatrix left the “disposable portion of all” her property, real and personal, to complainants; that defendants are setting up some claim to the titles to the land in question on the pretext that the will devised to the complainants only a part of the lands; that the idea of the defendants is that, “.the disposable part of an estate” in Louisiana being only one-third, therefore the defendants claim that, as they are the children and grandchildren of the testatrix other than the three daughters named in the first clause of the will, they are — 129 — entitled to an undivided two-thirds interest in the land situated in Mississippi. It is then alleged that the claim of the defendants casts a doubt, cloud, or suspicion on the title of complainants, and prevents a sale of the land, and the bill prays for a cancellation of the claim of the defendants, a quieting of complainants’ title, and a decree adjudging the property to belong to complainants. This bill was demurred to, the demurrer overruled, and, defendants declining to plead further, judgment final was entered against defendants declaring the property to belong to complainants, and canceling all claims of the defendants to same. From this judgment an appeal is prosecuted. In the construction of a will, it is a cardinal rule to so construe it as to carry out the intent of the party making it. It is superfluous to even repeat this rule. The testatrix plainly says: “I give and bequeath to my three daughters [naming them] the disposable portion of all my property, real or personal, that I may own at the day of my death.” If the above language is to be considered, uninfluenced by what counsel for appellants tells us is the law of Louisiana in reference to the right of the testatrix to dispose of all her property there, the will needs no interpretation from any court, as its intent is plain. The difficulty in the case, as suggested by counsel for appellants, is that counsel argues that this court in arriving at the intent of the testatrix must read into her language the law of Louisiana, and restrict the amount of property conveyed by the will in this state to what constituted the “disposable property” of the testatrix in Louisiana. It seems that in Louisiana the “disposable property” of the testatrix was only one-third of her estate. We have not examined the law as to this, because we deem it immaterial. In the first place, as was stated in the case of Wynne v. Wynne, 23 Miss. 256, 57 Am. Dec. 139, “as the land is situated in this state, the rights of the parties must be determined — 130 — by the laws of the state of Mississippi,” although the testatrix was domiciled in Louisiana at the date of the will and at the time of her decease. In the next place the plain intent of the testatrix, as expressed in the will, is that she gives to complainants “the disposable portion of all” her property. In this state she could dispose of all of her property bv will without any restriction, and the will does not indicate any purpose on the part of the testatrix to limit the amount of property conveyed to complainants in this state.to what would have been the “disposable portion” under the laws of the state of Louisiana. The will shows an unmistakable intent on the part of the testatrix to leave all her property to complainants, save such as the law prohibited her from leaving. If the testatrix had intended to leave to complainants only such an amount of her estate as was “disposable property” under the laws of Louisiana, it would have been an easy matter to have expressed this intent and. not use words that indicate an opposite purpose. The case of Wynne v. Wynne, 23 Miss. 251, 57 Am. Dec. 139, is conclusive of the legal principles controlling this case. In the case above cited one Albert H. Wynne died in the state of Tennessee in the year 1849. Prior to his death he executed a will by which, after providing-for the payment of his debts, he gave to .his wife “all the balance of my property, both real and personal, to have and to hold to her own benefit to 'the exclusion of all others.” On the date the will was made the testator owned a small tract of land in Tennessee and' other personal property situated there. Subsequent to the making of the will, he disposed of the land in Tennessee, and bought land situated in the state of Mississippi. The complainants were' the heirs at law of Wynne' and claimed the land as such. - The widow claimed it by virtue of the will, which had been probated both in Tennessee and in Mississippi. At the date of the will, — 131 — the common law prevailed in Tennessee, and this prevented a person from devising after-acquired lands. No snch law prevailed in this state. In stating the question involved in the above case, the court said: “The question in the case is, Can defendant, the devisee in the will, hold the lands acquired by the testator subsequent to the date of the execution of the will to the 'exclusion of the heirs at law?” In the above case it was. argued to the court that in arriving at the intent of the testator as to the quantity of estate intended to be conveyed by the will, the laws of the state of Tennessee should be looked to; and since under that law at the date of the will no after-acquired property could be devised, and as the property in question in that case was acquired after the date of the will, it therefore followed that the will disclosed an intent not to convey the particular property. In answer to this argument the court; said: “The argument has been pressed upon us that,, as by the law of- Tennessee at the date of the will the-testator could not devise after-acquired land, we must presume that it was not°his will or intention that they should pass by the devise. But this argument is not. entirely tenable. The cases in the books are numerous-where the intention of the testator to convey was manifest, but where that intention could not prevail, because' it controverted the law, and we presume that the courts; of Tennessee in regard to realty situated there, in giving' a construction of this will, would decide that on the face of the will the intention is manifest, that the testator designed bequeathing to his wife all the real estate of which he might die seised, regardless of the date of its acquisition. It is true, that in Tennessee, at the date of the will, that intention, however clear, could not have been carried into effect, because the testator had no power at that time by the law of that state to make such a devise. "Whether or not the courts of that state would hold that the subsequent statute conferring the power — 132 — upon the testator to make such a will would justify them in sustaining this will as to realty situated there, and acquired after its date, we do not know. But it is clear to our minds that, as the will manifestly shows that the intention of the testator- was to give to his wife all the property of which he might die seised, whether owned at the date of it, or subsequently acquired, that intention • must prevail and he carried into effect by the courts of This state in regard to realty situated here, there being no question whatever that the power existed under our laws to make such a will. We are therefore of opinion that the defendant in error is entitled by the laws of this state to the lands in controversy.” Wynne v. Wynne, 23 Miss. 251, 57 Am. Dec. 139. The language of the opinion in this case is peculiarly appropriate to the case under consideration. The intent of the testatrix in this, case to convey all of her disposable property is not left in doubt. We accept the language -of the testatrix as she uses it, and give effect to her will .-as it appears to us to have been her intention. She said that she gave to complainants all her “disposable property,” and we will not limit the quantity of land which goes by virtue of this hroad language, so as to exclude any portion of the estate from the operation of the will, simply because in Louisiana she could not dispose of all her property. The law of Louisiana places its own limitations as to the power of owners to make disposition -of their property, and the laws of the state of Mississippi control here. Affirmed. Suggestion of error filed and overruled.