Opinion
No. 40199.
June 11, 1956.
1. Wills — contract to make will — actions and words of parties too indefinite to create.
Where daughter allegedly signed transfer of her interest in father's estate to mother after mother stated children would get what mother had when mother died, actions and words of parties were too indefinite to create contract whereby mother was bound to provide by will or otherwise that daughter should receive one-third of mother's estate.
2. Wills — contract to make will — question for Chancellor as trier of facts.
Whether contract to make will was entered into between decedent and daughter was largely a question for Chancellor as trier of facts.
3. Wills — contract to provide by will for another must be clear — definite — certain — complete.
Terms of contract to provide by will or otherwise that another will receive share of estate must be clear, definite, certain and complete.
4. Wills — construction — law favors that which conforms most nearly to general law of inheritance.
The law favors that construction of a will which conforms most nearly to general law of inheritance.
5. Wills — construction — circumstances surrounding testator at time of execution of will.
A will should be construed in the light of the circumstances surrounding the testator at the time the will was executed.
6. Wills — doubtful provisions — construed favorably to next of kin.
Doubtful provisions of a will should be construed favorably to the next of kin.
7. Wills — interest in estate given in one clause — cannot be cut down or taken away by subsequent clause or words not as clear and decisive as the words giving the interest.
Where an interest in an estate is given in one clause of a will in clear and decisive terms, it cannot be taken away or cut down by raising a doubt upon the meaning of a subsequent clause, nor by inference, nor by subsequent words that are not as clear and decisive as the words giving the interest.
8. Wills — intention of testator — pole star for construction of will.
The intention of the testator is the pole star for the construction of wills.
9. Wills — colloquial meaning of "divide".
The colloquial meaning of "divide" is to deal out something in portions of equal share.
10. Wills — word "divided" — construed.
Under holographic will directing that property be equally divided with three children and that one child's property be divided with child's son, circumstanced as she was, testatrix intended that child and child's son share equally one-third of testatrix' estate.
Headnotes as approved by Gillespie, J.
APPEAL from the Chancery Court of Pearl River County; LUTHER A. SMITH, Chancellor.
Edward J. Currie, Edward J. Currie, Jr., Hattiesburg; Youngdahl Glick, Los Angeles, California, for appellants.
I. The dual agreement entered into between Mrs. John T. Boyd and Mrs. Gladys Boyd Youngdahl was a valid and binding contract which created an equitable charge against the estate of Mrs. John T. Boyd, which was enforceable as a constructive trust after her death. Anding v. Davis, 38 Miss. 574, 77 Am. Dec. 658; Johnston v. Tomme, 199 Miss. 337, 24 So.2d 730; Sec. 1690, Code 1942; 57 Am. Jur., Secs. 170, 174, 192 pp. 152-53, 155, 169-70; 89 C.J.S., Trusts, Secs. 151, 157; Vol. III, Pomeroy's Equity Jurisprudence (5th ed.), pp. 896-98; Vol. IV, Ibid., Sec. 1056(a) pp. 138-39.
II. The intention of Mrs. John T. Boyd, as determined by an interpretation of the will as a whole and in view of all circumstances surrounding the testatrix at the time of execution, was that one-third of her estate was to descend to her daughter, Mrs. Gladys Boyd Youngdahl. Schlottman v. Hoffman, 73 Miss. 188, 18 So. 893, 55 Am. St. 527; Countiss v. King, 149 Miss. 70, 115 So. 109; Strickland v. Delta Inv. Co., 163 Miss. 772, 137 So. 734; Cross v. O'Cavanagh, 198 Miss. 137, 21 So.2d 473; Patterson v. Patterson, 150 Miss. 179, 116 So. 734; In re Laughlin's Estate, 354 Pa. 43, 46 A.2d 477, 165 A.L.R. 891; In re Schnick's Estate, 169 Pa. Super. 226, 82 A.2d 262, 30 A.L.R. 2d 119; 57 Am. Jur., Secs. 1125, 1134, 1160, 1162, 1195, 1338 pp. 719, 729, 757, 759, 785, 887; 68 C.J., Sec. 204 p. 587.
III. Any language in the will of Mrs. John T. Boyd which purports to diminish the one-third interest of Mrs. Gladys Boyd Youngdahl in the estate is void for uncertainty and repugnancy. Cross v. O'Cavanagh, supra; Strickland v. Delta Inv. Co., supra; Bailey v. Sanger, 108 Ind. 264, 9 N.E. 159; U.S.F. G. Co. v. Douglas, 134 Ky. 375, 120 S.W. 328, 20 Am. Cas. 993; Wood v. Polk, 12 Heisk (Tenn.) 200; Williams v. Fundingsland, 74 Colo. 315, 221 P. 1084, 63 A.L.R. 77; Keely v. Adams, 149 Miss. 201, 115 So. 344; Simpson v. Watkins, 162 Miss. 242, 139 So. 400; National Bank of Greece v. Savarika, 167 Miss. 571, 148 So. 649; Jones v. Carey, 122 Miss. 244, 84 So. 186; Williams v. Gooch, 208 Miss. 223, 44 So.2d 57; Ferguson v. Morgan, 220 Miss. 266, 70 So.2d 866; Dealy v. Keatts, 157 Miss. 412, 128 So. 268; Schlater v. Lee, 117 Miss. 701, 78 So. 700; 19 Am. Jur., Sec. 78 p. 543; 57 Am. Jur., Sec. 1320 p. 873; 69 C.J., Sec. 1158 p. 112.
Morse Morse, Poplarville, for appellee.
I. Assuming, arguendo, that there was a valid contract between Mrs. Boyd and Mrs. Youngdahl, to devise Mrs. Boyd's property, the same is unenforceable as being within the prohibitions of the statute of frauds. Jamerson v. Logan, 228 N.C. 540, 46 S.E.2d 561, 15 A.L.R. 2d 1325; Wells v. Brooks, 199 Miss. 327, 24 So.2d 533; Sec. 264, Code 1942; 49 Am. Jur., Secs. 215-16 p. 539; 37 C.J.S., Sec. 100 p. 597; Atkinson's Handbook of the Law of Wills, Sec. 68 pp. 167-68.
II. The Court properly held that there was no contract because there was no offer and acceptance, no meeting of the minds, and the conversation was so indefinite as to terms as to be unenforceable. Gore v. Clark (S.C.), 16 S.E. 614; Graham v. Graham's Executors, 34 Pa. 480-81; Harper v. Calhoun, 8 Miss. (7 How.) 203; Russell v. Jones, 135 Fed. 929; Atkinson's Handbook of the Law of Wills, Sec. 68 pp. 167-68.
III. From a reading of the will taken as a whole, the intention of the testatrix is plainly ascertainable, and the Chancellor properly found that it was the intention of the testatrix that Mrs. Youngdahl have an undivided one-sixth of the property and her grandson, Richard Belin, have an undivided one-sixth of the property. Temple v. First Natl. Bank of Meridian, 202 Miss. 92, 30 So.2d 605; Yeates v. Box, 198 Miss. 602, 22 So.2d 411; Chilton's Digest of the Laws Respecting Wills, Executors, Administrators, Etc. (1st ed.), p. 108.
APPELLANTS IN REPLY.
I. In reply to appellee's proposition I. Anding v. Davis, 38 Miss. 574, 77 Am. Dec. 658; Thomas v. Thomas, 62 Miss. 531; Tanous v. White, 186 Miss. 556, 191 So. 278; Sample v. Romine, 193 Miss. 706, 8 So.2d pp. 257, 643, 10 So.2d 346; Shepherd v. Johnston, 201 Miss. 99, 28 So.2d 661; Triplett v. Bridgforth, 205 Miss. 328, 38 So.2d 756; Adcock v. Merchants Manufacturers' Bank of Ellisville, 207 Miss. 448, 42 So.2d 427; Pitchford v. Howard, 208 Miss. 567, 45 So.2d 142; Chichester v. Chichester, 209 Miss. 628, 48 So.2d 123; Coleman v. Kierbow, 212 Miss. 541, 54 So.2d 915; Saulsberry v. Saulsberry, 223 Miss. 684, 78 So.2d 758; Johnston v. Tomme, 199 Miss. 337, 24 So.2d 730; Boggan v. Scruggs, 200 Miss. 747, 29 So.2d 86; Secs. 264, 269, Code 1942.
II. In reply to appellee's proposition II. Griffith's Miss. Chancery Practice (2d ed.), Secs. 13-20 pp. 11-20.
III. In reply to appellee's proposition III. Yeates v. Box, 198 Miss. 602, 22 So.2d 411.
This case involves (1) an alleged oral contract to make a will, and whether the chancellor was manifestly wrong in finding that there was no meeting of the minds of the parties to the alleged contract (our decision makes it unnecessary to consider whether the contract was enforceable if it in fact existed); and (2) the construction of a will.
John T. Boyd died intestate in 1935. His heirs were his widow, Mrs. John T. Boyd, and three children, Mrs. Youngdahl, Mrs. Simpson, and Clyde Boyd. His estate consisted of two bank accounts totaling about $1400.00, and some school warrants of unknown value. There was no administration of his estate. A few days after the funeral of John T. Boyd, his three children decided to transfer the bank accounts and school warrants to their mother, Mrs. John T. Boyd, to enable her to pay certain debts of John T. Boyd and for her own use. A written contract was prepared to that effect, although it has been lost and its contents were not proven. Mrs. Youngdahl, appellant here, hesitated about signing the transfer of her interest in the bank accounts and school warrants to her mother and did so only after her mother told her "It don't make any difference because you children will get what I have anyway when I die."
Mrs. John T. Boyd died in 1953, leaving a holographic will in the following words:
"Poplarville, Miss. Aug. 26th, 1948
"I want my propety equly devided with my 3 children and Gladys part devided with her son Richard. Rent the Garridge or leave it. Rent my house and each year Save one month or more to pay Taxes. Be sure sure and keep my Insurance Paid and it burns devide the money equelly
give 1 war bond to John S. Boyd give 1 to Claud earl Simpson give 1 to Jinky Simpson give 1 to Gladys Belin give Barbara Nell Belin give 1 to Clyde Boyd I want my Son to see that this is this is carried our like I want. It I believe he will See that it is I dont want no one to be mad with me"Mrs. John T. Boyd"
This will was duly probated. Appellant filed a petition in the estate of Mrs. John T. Boyd in which she alleged she relied on her mother's statement that the children would get what Mrs. Boyd had when she died, and for that reason, and in consideration of her mother's said promise to leave appellant her share of the estate, appellant signed the transfer of the bank accounts and school warrants to Mrs. Boyd; that there was thus formed an oral contract to make appellant an heir or devisee which was binding on Mrs. John T. Boyd; that a proper construction of the will entitled appellant to a one-third part of the estate of Mrs. Boyd, who owned at the time of her death certain real property. The petition made an issue as to whether Richard Belin, appellee, was entitled to a one-sixth part of the estate of Mrs. John T. Boyd.
The chancellor heard the evidence and rendered a decree adjudging that under the will of Mrs. John T. Boyd it was the testator's intention to devise her property one-third to Clyde Boyd, one-third to Mrs. Simpson, one-sixth to appellant, and one-sixth to appellee. The chancellor found that there was no meeting of the minds between Mrs. John T. Boyd and appellant as to the alleged oral contract following Mr. John T. Boyd's death, and that the terms of the alleged oral contract was not sufficiently definite to be enforced. In other words, the chancellor found that there was no oral contract.
(Hn 1) The chancellor correctly held that there was no oral contract whereby Mrs. Boyd was bound to provide by will or otherwise that appellant would receive one-third of the estate. There were no promissory words employed by Mrs. Boyd. She only made a statement as to the meaning of which one would be required to resort to speculation. She may have meant by the word "children" to include appellee, who had been raised by her. The actions and words of the parties were of such indefinite character that it cannot be said that a contract was formed. 12 Am. Jur., Contracts, Sec. 64. (Hn 2) Whether the contract was entered into by Mrs. Boyd and appellant was largely a question for the chancellor as the trier of the facts. 57 Am. Jur., Wills, Sec. 190. (Hn 3) The terms of a contract of this kind must be clear, definite, certain, and complete. 57 Am. Jur., Wills, Sec. 197. Cf. Russell v. Jones, 135 F. 929. We can not say the chancellor was manifestly wrong in finding that there was no contract. It is difficult to see how he could have found otherwise. For this Court to hold that under this proof the chancellor should have found the existence of a contract (assuming, but not deciding, that it was enforceable) would be to place the devolution of property upon a shaky foundation, encourage litigation in estates, and put a premium on flimsy claims to estates of the dead.
(Hn 4) We now consider what Mrs. Boyd intended by her artless will written wholly in her own hand. There are numerous cases holding that the law favors that construction of a will which conforms most nearly to the general law of inheritance; (Hn 5) that a will should be construed in the light of the circumstances surrounding the testator at the time the will was executed; (Hn 6) that doubtful provisions should be construed favorably to the next of kin; (Hn 7) that where an interest in an estate is given in one clause of a will in clear and decisive terms, it cannot be taken away or cut down by raising a doubt upon the meaning of a subsequent clause, nor by inference, nor by subsequent words that are not as clear and decisive as the words giving the interest; (Hn 8) that the intention of the testator is the pole star for the construction of wills. These and other rules are general and helpful guides in determining the meaning of what a testator said in a will.
After giving full consideration to the applicable rules of construction to the entire will, the circumstances, the fact that it was a self-drawn will, the language employed, the possible conflicts in clauses, the fact that appellee had been raised by Mrs. Boyd and therefore probably considered somewhat in the category of a child, we conclude that Mrs. Boyd intended that appellee have a share of her estate; that she intended that he be placed in a different category from her other grandchildren, five in number, each of whom was given a war bond; that she intended that her estate be divided in three shares, as she had three children; that she intended that Gladys (appellant) divide her share with her son, Richard (appellee).
Circumstanced as she was, how did the testatrix intend Gladys divide with Richard? The dictionary gives this definition to the word "divide": "1. To part asunder (a whole); to sever into two or more parts or pieces." To the formal speaker of the language, "divide" would no doubt mean to sever into two or more separate parts. But the language employed by the testator clearly indicated that she would use words in their colloquial meaning. (Hn 9) The colloquial meaning of "divide" is: "To deal out something in portions or equal shares." Webster's New International Dictionary, Second Edition, Unabridged. (Hn 10) Here was a mother speaking to her children through her will. She was not speaking in the precise language of the lawyer or the formal speaker. It is our opinion that Mrs. Boyd intended that Gladys and Richard share equally in one-third of her estate.
Nor do we think that the fact that Mrs. Boyd provided for equal division of the estate into three parts for her three children indicated that she meant something other than equal division when she said that Gladys should divide with Richard. The provision for disposition of the insurance money if the property burned does not, in our opinion, evidence an intention that Richard should not get half of Gladys' one-third of the estate.
We hold the learned chancellor properly construed the will.
Affirmed.
McGehee, C.J., and Lee, Arrington and Ethridge, JJ., concur.