Learned v. Collins

Stevens, J., delivered the opinion of the court. The appeal in this ease is from a decree overruling a demurrer to the bill of complaint filed by appellees as complainants below. The ease turns upon the construction of the last will and testament of one Washington S. Burch, who died in Jefferson county in 1843, leaving a will that was duly probated and certain provisions of which were construed by this court in the case of Davenport v. Collins, 95 Miss. 358, 48 So. 733, and on suggestion of error, 96 Miss. 716, 51 So. 449. The present controyersy involves the construction of clause ten of the will and ownership of the land known as the “Nancy Burch place. ’ ’ Clause ten of the will is as follows: “Tenth. — It is my will and desire, that at the death of my mother, or so soon thereafter as it shall become necessary to divide and set off any part of my estate to any of my children that the plantation, on which my mother Nancy Burch now resides, and that portion of — 797 — the personal property (if any) shall remain thereon at that time, be equally divided among my three children.” The bill avers that Nancy Bnrch, the mother of testator, died in the lifetime of the testátor, and that clause ten never in fact became operative. It is the contention of appellants that by the terms of this clause the three children of Mr. Burch were vested with a fee as tenants, in common. Appellees contend, on the other hand, that this will, as said by Fletcher, J., in the first opinion construing same, “must be taken by the four corners, and rigidly examined as to all its provisions, in order that the intent of the testator may be thereby discovered,” and that by other provisions, and especially by the third clause, the three children, together with the widow, took only a life estate in this as well as the other' lands of the estate. Clause three is as follows: “Third. — It is further my will and desire that all of my estate, both real and personal (except such as is particularly excepted and otherwise disposed of in this will) be equally divided between my beloved wife Ada-line Burch, and my three children, to wit, Isaac ~W. Burch, Eliza Jane Burch and Nancy Burch, share and share alike, and I do give and bequeath to them the same in equal proportions as aforesaid, to be theirs and each of theirs during their natural life, and to the children and heirs of their bodies (if any they have at the time of their death), if not the same shall.revert to my estate in gross and be again divided between my said wife and children or such of them as shall survive, and to their heirs share and share alike, they to take a life estate in the same only; and all the children of my deceased children (if any) to take only such share as their deceased parent would have taken. But should any of my said children die without issue before such division, such division to be made among the survivors of my children and my said wife.” Other provisions of the will shedding light on the present controversy are as follows: — 798 — ‘ ‘ Second. — It is my will and desire that after my death all of my estate both real and personal (except such property as is hereinafter particularly excepted and otherwise disposed of) be kept together by my executors as the. same may be found by them or hereafter come to their hands, and from the proceeds of the crops, that they pay all necessary plantation expenses, the comfortable support of beloved wife, Adaline Burch, so long as she shall remain my widow and permit her portion of my estate to remain with that of my children, undivided, and the suitable maintenance and support of my children, until they shall arrive at the age of twenty-one or marry,” etc. The fourth, fifth, sixth, and eighth clauses are as follows : “Fourth. — It is my will and desire that my wife’s share, hereinbefore mentioned, shall be divided and set off to her at any time she may desire after my death, if she should prefer a division, rather than receive her support out of the general fund as hereinbefore provided, and hereinafter specified. “Fifth. — It is my wish that my wife remain in possession of the plantation on which I now live, and that she have the use of the household and kitchen furniture and stock, for and during’ her natural life, and that neither shall be divided among the heirs without her express assent until after her death, when the same shall be divided as hereinbefore provided in regard to other property equally among my children. ‘ ‘ Sixth. — It is my will and desire that all of my estate (except my wife’s share if she should think proper to ■withdraw it) remáin together common stock, until my children or any one of them shall become of age or marry, and when any one of them shall attain the age of twenty-one, or shall marry, then such child so becoming of age or marrying as aforesaid, shall be entitled to receive its respective share as herein provided, the bal — 799 — anee to remain together common stock and be managed by my executors to the best advantage until another division shall become necessary under the provisions of this will, and so on until each child shall have received its proportion.” “Eighth. — It is my will and desire that no part of my personal estate bequeathed to my children shall be sold or conveyed out of my family during the lifetime of my children and it is hereby declared to be contrary to the true intent and meaning of the bequests herein made to any of my children in any way, for any consideration, or under any pretext whatever to convey, alien, or incumber in any manner to any extent whatsoever, any of the personal property herein given and bequeathed, so long as any two of them shall live.” It appears from the pleadings that the Nancy Burch place, by some division of the property, was allotted to the son of the testator, Isaac W. Burch, who went into possession and afterwards undertook to convey the place to William and Sam Bullen, from whom by mesne conveyances the defendants claim title. The bill avers- that Isaac W. Burch died in February, 1913, leaving no children or bodily issue, and that complainants are, under the terms of the will, now the owners of the fee as remaindermen. It is conceded that if they are correct in this assumption the demurrer was properly overruled. As was said by the court in construing clauses three and five of this will in the Davenport Case, supra: “The controlling canon of construction in respect to the interpretation of wills is always to ascertain the real intent of the testator, and then to effectuate that intent.” The court in that case held "that the real estate dealt with by clause five of the will passed by the controlling terms of clause three. This clause three is a general devising clause of the will. By it the widow and children take a life estate in all the property of the testator not — 800 — “particularly excepted and otherwise disposed of.” Clause three expressly declares that all the estate, both real and personal, not otherwise disposed of should be equally divided between the widow and three children, share and share alike, for their natural life. It is a granting and devising clause. The language is: “I do give and bequeath to them.” What then was the intention of the testator in clause ten? Was the Nancy Burch place thereby “otherwise disposed of”? Taking the will ‘ ‘by the four corners, ’ ’ we think that clause ten in the first place directed attention to Mr. Burch’s ownership of this place, which was then in possession of his aged mother. The testator claimed it, but at the same time he expressed the wish that possession of his mother should not be disturbed during her life. This was an expression of the very natural wish of the testator. By this clause the testator furthermore gave directions as to the partition of this specific property amongst those he thought should make use of it. By clause five he expressed the wish that his wife should remain in possession of the homestead plantation. If she should remain in possession of the homested, then, of course, she would not reside on any portion of the Nancy Burch place. None of the estate was to be divided until the oldest child became • twenty-one years of age or married, and then only to the extent of setting apart to suclqchild his or her part. Looking at all the provisions of this will, therefore, and keeping in mind, as said by Whitfield, C. J., in the Davenport Case, “the great controlling purpose of the testator,” we thin],c clause ten deals solely with the particular question of the possession and division of the Nancy Burch place, and not with the title thereto. The usual words of a devise as employed in clause three are absent, and the words “so soon thereafter as it shall become necessary to divide and set off any part of my estate to any of my children” unquestionably link clause ten to the disposing clause of the — 801 — will so that these two clauses are “governed by one and the same purpose” as much so as clauses five and three which, by the former opinion of this court, are “undoubtedly linked.” The property dealt with by clause ten is linked to the general bulk of his estate by the language “so soon thereafter as it shall become necessary to divide and set off any part of my estate.” If these words are not construed in connection with clauses three and sis, then they become meaningless. Any other construction would, immediately upon the death of the testator, invest the three infant children with the property in question free of any limitation, and would be repugnant to the general plan of the testator to hold the estate of the children together under one management during their minority. To segregate and consider alone any important clause of this will would simply be to “stick in the bark” and create confusion and defeat the plan of the testator. On the other hand, if we look at' all its provisions, the entire will reflects a harmonious plan by which a solicitous and providing husband and father attempted to secure a. home for his widow and a just and equitable partition of his valuable estate among his immediate family circle, or those who survived and their descendants. . The construction given to clause ten by the chancellor of thé court below is in perfect accord with the rule of construction and pronouncements of this court in the Davenport Case, and the demurrer, in our judgment, was properly overruled. Affirmed.