Summary
In Norfleet v. Norfleet, 151 Miss. 790, 119 So. 306, the testator, under Item Four of his will, devised land "to my three sisters and two brothers, share and share alike (naming them).
Summary of this case from Carter v. Sunray Mid-Continent Oil Co.Opinion
No. 27510.
December 17, 1928.
PERPETUITIES. Provision limiting devise to three sisters and two brothers in case of death without descendants held invalid ( Two Donee Statute).
Provision of will limiting devise to the three sisters and two brothers of deceased in case either should die without leaving descendants of their body held invalid, under the Two Donee Statute (Code 1906, section 2765; Hemingway's Code 1927, section 2424), in that, although the land was devised to succession of donees then living, the number of donees exceeded the limit fixed by statute.
APPEAL from chancery court of Tunica county; HON. HARVEY McGEHEE, Chancellor.
Joseph W. Hopkins, for appellant.
The one fundamental rule governing the construction of a will is to ascertain the intention of the testator at the time of making the will. Ball v. Phelan, 94 Miss. 293, 49 So. 956; Ingliss v. Trustees of Sailor's Snug Harbor, 7 L.Ed. U.S.P. 617 (624); Gordon v. McDougal, 84 Miss. 715, 37 So. 298; Hale v. Nelson, 72 So. 1012; Bullard v. Bullard, 132 Miss. 544, 97 So. 1; See, also, 28 R.C.L., Sec. 167, 206, et seq.; Green v. Green, 26 N.E. 739, 21 Am. St. Rep. 743; Mee v. Gordon, 116 Am. St. Rep. 613; In re Billis, 129 Am. St. Rep. 355.
If a will is susceptible of two reasonable constructions one valid and the other invalid, the court must adopt the former. Henry v. Henderson, 101 Miss., 751, 58 So. 354.
General expressions apparently giving the tenant for life a limited power over the estate must be regarded as referring only to the disposition of the life interest. And in order to authorize the life tenant to dispose of the inheritance and cut off the interest of the devisee, the language must be definite, clear and specific. 23 R.C.L., Remainder 6, 7 Ann. Cas. 955; Greves v. Comery, 28 N.W. 564; Whittmore v. Russell, 14 A. 19; McDaniel v. Allen, 64 Miss. 417, 1 So. 356.
A bequest or devise may be made by mere implication and a devise over in case the devisee should die, "without family" or "without heirs" or "without a child" is an implied devise to such family, heir or child, if there are other words in the will which indicate that the testator had in mind to bestow an interest on these persons. Ball v. Phelan, supra; Beilstein v. Beilstein, 45 A. 73, 75 Am. St. Rep. 692; Boston Safe Deposit Trust Co. v. Coffin, 25 N.E. 30, 8 L.R.A. 740; Moon v. Stewart, 10 N.E. 344, 45 L.R.A. (N.S.) 48; Masterson v. Townshend, 24 N.E. 928, 10 L.R.A. 816; Connor v. Gardner, 82 N.E. 640, 15 L.R.A. (N.S.) 73.
The case at bar is practically on all fours with Bullard v. Bullard, 132 Miss. 544, 97 So. 1.
We do not see that the will of John Chambliss Norfleet is in violation of the statute of this state against perpetuities. There is not a succession of donees in the devise to his five brothers and sisters. The property is given to all of them together. There is one gift. It seems clear to us that this will does not violate the "Two Donee Statute," for the reason that we have the brothers and sisters, who constitute the first class and the nieces and nephews "living at the time of the execution of the will, constituting the second class. The estate in the property disposed of is a life estate. It is perfectly manifest that it was the intention of the testator that the child or children of each life tenant should take the remainder in fee after the life estate of the deceased parent. The brothers and sisters get the life estate; the nephews and nieces the fee. The principles of the law governing this case and adverse to the contention of appellees are clearly set out in Reddeck et al. v. Williams, 129 Miss. 706, 92 So. 831.
Dulaney Jacques, and Holmes, Canale, Loch Glankler, for appellees.
It is our contention that item four of said will creates either:
1. A fee-tail in the surviving brothers and sisters of the testator, which is by statute converted into a fee-simple absolute, or
2. The will violates what is known in Mississippi as the Two Donee Statute. (See authorities cited in the case of L.C. Shannon, Appellant v. J.P. Norfleet, Trustee, et al., Appellees, No. 27512, now pending in this court and up for hearing on the same day.) See, also, Gray's The Rule Against Perpetuities (3 Ed.), Sec. 629, p. 497; Scott v. Turner, 137 Miss. 636.
In the period of more than one hundred years during which we have had a statute forbidding entailments and limiting successive conveyances, there had been no doubt expressed on this subject, unless such doubt is found in Bratton v. Graham, 111 So. 353. However, the rule announced in that case has reference only to a situation by which a devise may be upheld as far as can be reasonably done, without violation of the Two Donee Statute.
In the case at bar we are not troubled with ambiguities. We may have some trouble in ascertaining the intention of the testator. Perhaps the testator intended to give determinable fees to his brothers and sisters, the said fee to be determined if they should die without issue "without living descendants of their body surviving them," and in that event the remainder to go over to surviving brothers and sisters or their descendants. If this was the intention of the testator, then the will clearly violates the Two Donee Statute, and the case is ruled by Smith v. Muse, 134 Miss. 827, and Scott v. Turner, 137 Miss. 636. So that, applying the rule that the court will adopt the reasonable construction of a will which would give effect to the purpose of the testator, as shown thereby, rather than a construction which would fail to carry out the evident dominant purpose of the testator, we feel sure that the court will find little difficulty in harmonizing our contention in this case with what was said by the court in Bratton v. Graham, supra. See Lazard v. Hiller, 110 So. 855; Caldwell v. Willis, 57 Miss. 555.
We can find nothing about the will to indicate that the first takers held life estates, and we do not think that it can be seriously contended that they did. If they did not, the will offends against the first portion of the Two Donee Statute. If they did, it equally offends against the latter portion of the statute, for the reason that the extent of the life estate, and hence the extent of the limitation over, could never be determined until after the death of five donees in succession, so upon the death of Mrs. Felder, leaving as her only surviving issue the now unborn daughter of a now unborn granddaughter, the limitation over to that person, at this time so far removed from existence in this world, might be an undivided one-fifth or various fractions ranging up to the whole, which such person might take as the share of her great grandmother and in part as the share of great uncles and aunts. In no possible way can the share given the first takers be ascertained. Therefore, the limitation over from the first takers would be altogether indefinite and remote and void in toto, with the result that the life estates to the first takers would be at once converted into indefeasible fees either by operation of the statute, or by virtue of the fact that there is intestacy as to anything except life estates, and the first takers being the heirs at law of the testator, took the remainder by inheritance; or it may be that the court would take the view that since the property passes by a residuary devise, these five sisters and brothers would nevertheless take as residuary devisees. The result being the same, this case could be decided without necessarily deciding in which manner the title vested in fee simple in the appellees.
Argued orally by J.W. Hopkins, for appellant, and J.E. Holmes and J.W. Dulaney, for appellee.
Appellees filed their bill in the chancery court of Tunica county against the heirs of John Chambliss Norfleet and the devisees and legatees under his will, for the construction of said will, and a partition of a plantation in Tunica county devised by the terms thereof. Appellant, Vance Norfleet, alone, contested the construction which the appellees sought to have put upon the will. There was a trial on bill and answers thereto, including the answer of the appellant, Vance Norfleet, and proofs, resulting in a final decree in favor of appellees. From that decree, the appellant prosecutes this appeal.
John Chambliss Norfleet died owning a one-sixth undivided interest in fee in the land sought to be partited by the bill in this case, the other five-sixths undivided interest in said land being owned by the brothers and sisters, Cecil M. Norfleet, J.P. Norfleet, Mrs. Ada Lee Riley, Mrs. Eugenia Cronkrite, and Mrs. Wilson N. Felder, each of whom also owned a one-sixth undivided interest therein in fee. John Chambliss Norfleet was unmarried when he died and left no issue surviving him. He left a last will and testament in which the land sought to be partited was disposed of by the first paragraph of item four thereof. This paragraph is the one in controversy, and is in this language:
"Item four: It is further my will that the balance of my property, both real, personal and mixed, and of whatever kind or character that I may die seized and possessed of, or, in which I may have any interest at the time of my death, and wheresoever the same may be situated, I do hereby give, devise and bequeath to my three sisters and two brothers, share and share alike; Mrs. Wilson Norfleet Felder; Mrs. Ada Lee Norfleet Riley; Mrs. Eugenia Norfleet Conkrite; Jesse P. Norfleet, and Cecil M. Norfleet, But, if either of my said sisters or brothers should die without leaving descendants of their body surviving them, then, in that event, the share or interest of said sister or brother so dying without leaving descendants surviving is to vest in her or his brothers and sisters share and share alike, the descendants of any deceased sister or brother to take the share of its parent."
By the first clause of item four, the testator devised his residuary estate (of which the land involved was a part) to his three sisters, Mrs. Wilson Felder, Mrs. Ada Lee N. Riley, Mrs. Eugenia N. Conkrite, and his two brothers, J.P. and Cecil M. Norfleet, share and share alike. Under that clause of the will, the testator's undivided one-sixth interest in the land involved was devised in fee to his three sisters and two brothers, share and share alike, which gave to each of them a one-thirtieth undivided interest in the land in addition to the one-sixth interest which each of them already owned. However, by the second clause of item four of the will the testator undertook to limit the fee so devised by providing that, if either of his sisters or brothers should die without leaving issue surviving him or her, the share or interest of such sister or brother should vest in his or her surviving brothers and sisters share and share alike, the descendant or descendants of any deceased brother or sister to take the share of their parent.
We think it plain that clause two of item four comes within the condemnation of our Two Donee Statute (section 2765, Code of 1906; section 2424, Hemingway's 1927 Code), Smith v. Muse, 134 Miss. 827, 98 So. 436; Hudson v. Gray, 58 Miss. 882. By that clause, taken in connection with the first clause of item four, although the land was devised to a succession of donees then living, the number of donees exceeded the limit fixed by the statute — two. There were five instead of two. The testator undertook, in the second clause, to cut down the fee devised by the first clause, by providing that the estate granted in the first clause should be defeasible during the period from the date of the testator's death until there should be left only one surviving brother or sister, during which period the fee in the share given each brother or sister was subject to be defeated upon his or her death without issue. Smith v. Muse, supra, is conclusive of this question. The controlling principle in that case manifestly controls in the present case.
The result is that the first takers, the five surviving brothers and sisters of the testator, took the testator's undivided one-sixth interest in the lands involved in fee.
Affirmed.