Opinion
No. 26967.
April 9, 1928. Suggestion of Error Overruled May 14, 1928.
1. WILLS. Remainder to children under will devising life estate to widow and authorizing disposition after marriage of all children, did not vest at death of testator.
Under will devising all of property to widow for life and granting control and benefits of property to unmarried children at time of her death, with disposition after all children were married, remainder to children thereunder did not vest at death of testator.
2. WILLS. Will should be construed to effectuate purpose of testator, ascertained from whole will.
A will should be so construed, if possible, as to effectuate the purpose of the testator, and in order to ascertain the purpose and intent of its maker the whole text of the will must be taken into consideration.
3. WILLS. Construction of ambiguous will, effecting just and reasonable disposition, is favored in absence of manifest intention to contrary.
Where language of will is ambiguous and intent of the maker obscure, a construction which will effect a just, natural, and reasonable disposition in accordance with laws of descent and distribution is favored, unless there is a manifest intention to the contrary.
4. WILLS. Remainder to children under will devising property to widow for life with disposition after all children were married, did not vest until life tenant's death and marriage of all children.
Under will devising all of property to widow for life with remainder to children, and providing for disposition after all children were married, remainder did not become vested until after death of life tenant, and at a time when all children were married.
APPEAL from chancery court of Marshall county; HON. N.R. SLEDGE, Chancellor.
Smith Smith, for appellant.
Where the testator's intention, as expressed in his will, is ambiguous or obscure, such a construction should be adopted, if possible, as will dispose of his property in a just, natural, or reasonable manner, such as by an equal distribution among his children or beneficiaries, where that is his manifest purpose. 40 Cyc. 1411: "Where an ambiguity exists in a will, unless there is a manifest intention to the contrary, the presumption that the testator intended that his property should go in accordance with the laws of descent and distribution will be applied as an aid in construing the will; hence such a construction should be given the will as favors the heirs at law, or next of kin, in preference to disinheritance, or . . . and the heirs at law will not be disinherited by mere conjecture, but only by expressed words in the will or by necessary implication arising from them." The law of inheritance prevails against the terms of the will in doubtful cases. Stevenson v. Durley, 4 Ind. 519. Heirs or next of kin cannot be excluded by words of doubtful or uncertain meaning, as doubts are to be solved by reference to the intestate law. Hubert's Estate, 6 Pa. Est. 96; Evans' Est., 11 Kulp. (Pa.) 212. The law favors vested estates and no remainder will be construed to be contingent, which may, consistently with the intention, be deemed vested. McDaniel v. Allen, 64 Miss. 417, 1 So. 356. The will must be construed as a whole. Selig v. Tract, 110 Miss. 584, 70 So. 699; Harvey v. Johnson, 111 Miss. 566, 71 So. 824. Where a devise is made in apt terms, a subsequent ambiguous devise, of doubtful construction, should never be considered as governing the phrases of the preceding devise, that is clear and unambiguous when considered alone. Harvey v. Johnson, 111 Miss. 566, 71 So. 824.
In the will at bar we have in the first line a clear, plain, and unambiguous devise of a life estate to the wife of the testator. Therefore, by this first devise the testator gave the life estate to his widow, and the remainder estate was also passed on to somebody by the very operation of the language creating the life estate. It is impossible to create a life estate in land without leaving a reversion or remainder. The law solves the difficulty arising from a failure to devise this remainder, or where it is devised in ambiguous terms and the meaning is uncertain and obscure, by vesting the remainder at the time the life estate becomes of effect, to-wit: at the death of the testator, in this instance. Therefore his three children, viz., the husband of appellant, and the daughter and another son of the testator, became vested with title to the remainder by operation of law at the date of the death of the testator, their right to enjoyment of the possession being postponed during the life of the testator's widow. In McDaniel v. Allen, 64 Miss. 417, 1 So. 356, our court adopted the following rule in this kind of case: "the law favors vested estates, and no remainder will be construed to be contingent which may consistently with the intention of the testator, be deemed vested." In that case a testator devised his estate to his wife for life, and upon her death, to the heirs of his body. One of the testator's sons having died after the testator, but before the wife, held, the remainder limited by the testator to his heirs-at-law was vested, and not contingent, and those who were alive at the death of the testator took the estate, and not those only who survived the wife. In the case at bar, appellee's position is that appellant's husband was disinherited because he did not survive the wife of the testator.
In Scott v. James, 3 How. 307, a testator by his will directed that all his property should be kept together by his executors until his daughter arrived at full age or married, then to be equally divided between his wife and daughter; but if the daughter died without issue the whole to go to the wife. The daughter died before majority and then the widow died leaving a second husband surviving. Held that the wife had a vested interest in the property during the marriage, and that her heir was entitled to it.
An estate vests when and as soon as there is a person in being and ascertained who has an unconditional right to enjoyment upon the termination of the preceding estates which are all sure to terminate or on the happening of an event that is sure to occur. Rood on Wills, p. 397, par. 571, et seq. The law favors the construction by which devises and legacies will be vested at the earliest moment consistent with a fair interpretation of the will, which is usually after a testator's death. Though there are conditions in the will by which the estate may be defeated before the time for enjoyment, the rule still holds. If a devise is made to A until B attains a stated age and then to B in fee, the fee vests in B on the death of the testator and is not divested by B's death under the prescribed age.
Remainders under a will may be vested or contingent; though, in case of doubt, the former and simpler should in these days be preferred in construction. Schouler on Wills, Executor and Administrator, p. 719, par. 560; Bunting v. Speaks, 3 L.R.A. 690, holds that the remainder vested at the testator's death, the life estate being in the widow during her life, and that a deed conveying the interest of a son who pre-deceased said wife, until after whose death the will provided the children were not to take, conveyed a good title to the purchaser of said interest. This case is very exhaustively and learnedly considered by the court and is practically on all fours with the will in the case at bar here. The decision was reached by the court without dissent and the opinion covers exhaustively the learning on the subject. Hawley v. James, 16 Wend. 137; Moore v. Little, 41 N.Y. 75; Lawrence v. Bayard, 7 Paige, 75; Moore v. Little, 41 N.Y. 82; Warren v. Ingram, 96 Miss. 438, 51 So. 888; Schlater v. Lee, 117 Miss. 701, 78 So. 700; Jones v. Cary, 122 Miss. 244, 84 So. 186.
This will can be construed according to the dictates of what the law in its policy regards as the just and natural descent of property, and which is also the natural dictates of a father's heart; and also by holding that it provides for the fee to take effect when all the children are married, without either of these constructions doing violence to the whole will or resulting in the disinheritance of a child. Opposed to these two reasonable constructions is the one adopted by the lower court, disinheriting a child, and providing that the fee took effect at the death of the life tenant.
The dominant purpose in the mind of the testator is manifestly to take care of his wife, and to this there is a subservient purpose apparent, to prepare a home for his single children. There is then the ambiguous phraseology in general terms which has led to the confusion in the construction of this will. The testator provides that when all are married or none remain single, that the property may be divided among the living children. This is certain clearly in its intendment and would not conflict with a construction of the will holding that the fee vested at the death of testator but that no division could take place until all were married, because an earlier division would defeat the second main purpose of the will in providing a home for the single children to continue as long as they remained single, and would not be inconsistent with the proper attitude of a father toward his children, because it is not conceivable when he made the will he knew which child would be alive and which one would be dead at any time thereafter. This construction would therefore be in harmony with both the paramount and the subservient purposes of the will and in harmony with all the principles of law pertinent to the construction of this will.
Wall Doxey and Hindman Doxey, for appellees.
Dwelling briefly on the terms of the will, we find that it provides "and at my wife's death IF" — etc. When? After my wife's death; nothing happens until then. Then, after my wife's death, "if there is one or more of our children living and unmarried they that are single are to have the control and benefits of the farm and all property left on it, and if any of them should ever marry against the will of the other members of the family, in so doing they are to be forever barred from any part or lot in my estate and when all are married or none of them is left single, the property can be disposed of in such way and manner as seemeth best and divided among our living children." It is not misconstruing the intention or purpose of the testator in the slightest to omit from the present discussion a part of the conditions and circumstances which do not enter into the case wherein it is provided what shall be done "if there is one or more of our children living and unmarried." (When? At my wife's death.) For it is admitted that all three children had married prior to the wife's death. Also, we may omit for the purpose existing at this time the question as to any of the children marrying against the will of the family for this is not to be considered on this hearing. We then have as the true intent of the testator that "at my wife's death . . . the property can be disposed of in such way and manner as seemeth best and divided equally among our living children." Two conditions are requisite for the vesting of any property rights in the children and these two conditions must first be fulfilled before the children are privileged to divide or dispose of said property and not until both of these conditions have taken place does the remainder vest. These two conditions being, first the wife's death, and second when all are married. When both of these conditions have become a reality then the property vests and can be disposed of in such a way and manner as seemeth best among the living children. The said James L. Patterson, husband of the appellant herein, Mrs. Mae Pennington Patterson, having died before his mother, Mrs. Josephine Patterson, the wife of Mr. M.L. Patterson, no interest could possibly vest in him or his heirs since one of the conditions above made to-wit; "the wife's death" had not happened. The children living at the death of Mrs. Josephine Patterson were the class designated by the will who were to inherit at the termination of the life estate and certainly an interest may be devised by a testator to vest to a class upon the discontinuance and termination of the life estate.
The time for disposition is fixed in a subsequent period, on the happening of a future event, and the interests vest in such persons only as at that time fall within the designated class, being the children living and not grandchildren, daughters-in-law or sons-in-law, but living children. The class that inherited under the will of Mr. M.L. Patterson were the living children at the death of Mrs. Josephine Patterson and only those children who were living at her death, who were living at the termination of the life estate could inherit. That until the time appointed to ascertain the members thereof the number may fluctuate. 2 Jarman on Wills, 700; Tucker v. Stites, 39 Miss. 196; Dunlap v. Fant, 74 Miss. 197.
We do not see the reason for citing the case of Scott v. James, 3 How. 307, in support of the appellant's contention, for we do not see where this case is applicable, the facts in that case being entirely different to those in the instant case. Bunting v. Speaks, 3 L.R.A. 690, relied on by the appellant lacks a great deal from being on "all fours" with the case at bar and a casual glance at the terms of that will would show that they are entirely different from those contained in the will of Mr. Patterson. The phraseology "during her lifetime and then they are to descent to my legal heirs" is entirely different from "at my wife's death . . . divided equally among our living children."
In Warren v. Ingram, 96 Miss. 438, 51 So. 888, the court construes the will but we decline to agree that the will of Ingram possessed the attributes of the will of Mr. Patterson and that the circumstances among the heirs were somewhat similar to the facts that are in this case. In the Ingram case there was no mention as to what would become of the property after the death of his widow, Mary Jane Ingram, and the will was absolutely silent as to where it should go or in whom it should vest, while in the will of Mr. Patterson he especially provided when the title should vest and in whom it should vest.
We do not question the holding of the court in Schlater v. Lee, 117 Miss. 701, but we do submit that the facts in this case are entirely different from those in the case at bar and, therefore, that case has no bearing and effect on the construction of the will of Mr. Patterson. We are confident that the intention expressed in the will now under consideration is in sufficient language and is sufficiently clear to show to this court what the purpose of the testator was.
Argued orally by L.A. Smith, Sr., and Jr., for appellant, and Hindman Doxey, for appellee.
The complainant, Mrs. Mary Pennington Patterson, filed an original bill in the chancery court of Marshall county, against W.B. Patterson and Mrs. Clara Patterson McClatchey, seeking a partition of certain lands therein described, and which she claims to own an undivided one-third interest.
The bill alleged that, on or about January 9, 1924, she became the lawful wife of J.L. Patterson, who died intestate on or about February 22, 1925, and that she was his sole surviving heir at law; that her late husband, the said J.L. Patterson, was a son of M.L. Patterson, who died testate on or about the 28th day of March, 1913, leaving surviving him his widow, Mrs. Josephine Patterson, and three children, J.L. Patterson, the husband of complainant, and the two defendants, W.B. Patterson and Mrs. Clara Patterson McClatchey; that under the terms and provisions of the last will and testament of the said M.L. Patterson, deceased, there was devised to his widow, Mrs. Josephine Patterson, a life estate in all of his property, with a vested remainder in his three children, with possession postponed until the death of the life tenant, but with the further proviso that when all the children were married the property could be disposed of in such way and manner as seemed best, and divided among the living children.
It was further alleged that, although all the children became married many years ago and then and there the vested remainder became subject to division among the said children, subject to the life estate of the said Mrs. Josephine Patterson, by mutual forbearance, no effort was made to divide the same, and at the time of the death of the said life tenant their inheritance was still undivided, as it was at the time of the death of the complainant's husband; that the life tenancy having been terminated, the vested remainder is merged with the possession, and the parties to the bill of complaint are entitled to a partition of said lands, each being entitled to one-third thereof, the complainant, as sole surviving heir at law of her deceased husband, being entitled to his share or interest in all the property devised and bequeathed under the will of the said M.L. Patterson, deceased, and particularly referred to and described in the bill of complaint.
The bill further averred that Mrs. Josephine Patterson, the widow of M.L. Patterson, died on February 4, 1927, while J.L. Patterson, the husband of complainant, died on February 22, 1925, and prayed that all the property, both real and personal, be divided in kind if practical, and, if not, that it be sold and the proceeds divided, share and share alike, between the complainant and defendants; and that the court, by its decree, establish and declare, as a matter of right and law, that under the terms of said will the complainant, on the death of her husband, succeeded to and now has and owns, as his sole heir, all the rights he would have under said will if he were now living. To this bill of complaint, the defendants filed a demurrer challenging the right of the complainant to any share or interest in the property under the facts alleged, which demurrer was sustained, and from the decree sustaining this demurrer an appeal was granted to settle the principles of the case.
This appeal requires a construction of the said last will and testament of M.L. Patterson, deceased, which will is filed as an exhibit to the bill of complaint and reads as follows:
"I hereby will all my property to Josephine my beloved wife during her life time, for she has worked hard and helped me to make what we have gathered around us of this worlds goods and I want her to have the benefits and control of it as long as she lives the lands is not to be sold nor any mortgage or any incumbrance made on the property that I leave, and at my wife's death if there is one or more of our children living and unmarried they that are single are to have the control and benefits of the farm and all property left on it, and if any of them should ever marry against the will of the other members of the family in so doing they are to be forever barred from any part or lot in my estate and when all are married or none of them is left single the property can be disposed of in such way and manner as seemeth best and divided equally among our living children now I have wrote this with my own hand and free will and accord and here unto affix my name and date.
Signed M.P. Patterson.
"A.D. October the 6th, 1911."
The dominant purpose of the testator was to provide a home for his wife, in the possession of which she could not be disturbed during her natural life, and, to accomplish this purpose, he devised to her a life estate in all of his property with the further provision that, so long as she lived, none of the property should be sold or incumbered. Having provided for his wife, it was clearly his purpose to provide a home for any of his children who were living and single at the time of his wife's death, so long as they continued single; and this is made manifest by the provision that "at my wife's death, if there is one or more of our children living and unmarried, they that are single are to have the control and benefits of the farm and all property left on it." This is followed by the further provision that "if any of them should ever marry against the will of the other members of the family in so doing they are to be forever barred from any part or lot in my estate." But it is admitted that, under the facts, this provision never became operative, and it is immaterial here except in so far as it may shed light upon the intent and purpose of the testator, and the question as to when the remainder became vested. The testator then finally provided that "when all are married and none of them is left single the property can be disposed of in such way and manner as seemed best and divided equally among our living children." While the will does not contain the usual and proper marks of punctuation, the provisions and limitation thereof may properly be separated as above out lined, from which it apears that the testator created a life estate in his wife, with remainder to one or all of his children as the facts might exist at the time the remainder became vested.
The appellant contends, first, that this remainder was not contingent, but that it vested at the death of the testator in his then living children, with the right of possession postponed until the death of the life tenant; and, second, that if mistaken in the view that the remainder vested at the death of the testator, it necessarily vested when all the testator's children were married and none of them were left single, none having married against the will of the other members of the family. The appellees contend that the class to whom the remainder was devised could not be determined until the death of the life tenant, and that the remainder, which was contingent upon the happening of that event, vested in the children of the testator who were then living.
It is a cardinal rule of construction that a will should be so construed, if possible, as to effectuate the purpose of the testator, and in order to ascertain the purpose and intent of its maker, the whole text of the will must be taken into consideration; and where the language of the will is ambiguous and the intent of the maker obscure, a construction which will effect a just, natural, and reasonable disposition in accordance with the laws of descent and distribution is favored, unless there is a manifest intention to the contrary; and it has been held by this court, in line with the authorities generally, that "the law favors vested estates, and no remainder will be construed to be contingent which may, consistently with the intention" of the testator, "be deemed vested." McDaniel v. Allen, 64 Miss. 417, 1 So. 356.
In the will now before us, however, it seems perfectly clear that it was not the intention of the testator that the remainder should vest at his death, but it was conditioned upon the happening of events which could not be known or determined at that time. It was clearly his purpose to provide a home for, and give the use and benefits of the property to, such of his children as were unmarried and single at the date of the death of the life tenant. At the time of the testator's death, the record shows that at least one of his children was still unmarried, and until the death of the life tenant, it was not possible to determine whether any of them would be single at that time; and while it may be that the provision that those of his children who were unmarried and single at his wife's death should have the "control and benefits" of the farm and all the property left on it is not inconsistent with a vested estate with the right of possession postponed until the last one of his children was married, still when it is considered in connection with the provision that if any of the children should ever marry against the will of the other members of the family, by so doing they were to be forever barred from any part or lot in the estate, it seems clear to us that the testator did not intend that the remainder should vest at his death.
By the last provisions there is expressed the clear and unmistakable intention to disinherit any of his children who married against the will of the other members of the family; and while it is true that it is conceded that none of the children married against the will of the other members of the family, and consequently, that this provision was never called into play, still it throws a flood of light on the intention of the testator and makes it manifest that it was his intention that the remainder should not vest until that fact had been definitely determined. Consequently, we do not think the remainder vested at the death of the testator.
The next question for consideration is whether or not the remainder vested when all of the children married, none of them having married against the will of the other members of the family. The provision of the will upon which rests the contention that the remainder vested when all of the children were married is, "when all are married and none of them is left single the property can be disposed of in such a way and manner as seemeth best and divided equally among our living children." That the testator did not intend by this provision that the entire estate might be sold or divided whenever all the children were married, provided this eventuality occurred before the death of the life tenant, is perfectly manifest, since so to do would defeat the purpose which he so plainly expressed and carefully guarded in the first provision of the will, that is, that the life tenancy devised to his wife should not be sold, terminated, incumbered, or in any way disturbed during her lifetime.
That it was not so intended is also manifest from the fact that it was expressly provided that such of his children as might be "unmarried and single" at the time of his wife's death should have the "control and benefits" of the property so long as they continued single, and until the death of the life tenant it was not possible to determine whether any of the children would then be unmarried and single. Did the testator by this provision intend that when all of his children were married they might sell the remainder, which would become vested in them upon the happening of that event? We think not.
It is provided that when none of the children are left single, the property may be disposed of in any way or manner deemed by them best and divided among the living children. This provision contemplates a disposition of the entire estate, or a possible equal division in kind of the entire property among the then living children. When then did the remainder become vested and the right of disposition or division of the estate arise? At the death of the life tenant if all of the children then living were married, and, if not, at such time thereafter as all of them became married. This record shows that at the date of the life tenant's death all of the testator's living children were married, and therefore the remainder created by the will vested at that time in the children then living. Not until the marriage of the last child at or after the death of the life tenant could the class who would take the remainder be determined.
The decree of the court below sustaining the demurrer to the bill will, therefore, be affirmed and cause remanded.
Affirmed and remanded.