Chrisman v. Bryant , 108 Miss. 311 ( 1914 )

Reed, J.,

delivered the opinion of the court.

This case involves the construction of certain provisions in the will of Judge j. B. Chrisman. The matter was presented to the chancery court upon a petition, united in by the several parties in interest, praying that the will be construed and the rights of the parties defined. From a decree by the chancellor construing the will, this appeal was taken by J. J. Chrisman, appellant, one of the executors and one of the residuary legatees therein.

The provisions of the will for construction are items 7 and 8, which are as follows:

“Item 7. I give to my friend Z. D. Davis as trustee for the benefit of Carrie Bryant and her children for a term of ten years the interest on the following levee bonds: Bonds 3, 4 and number 43, three thousand dollars, the interest to be paid to her semiannually for the benefit of herself and children. My purpose is to secure the income to Carrie for that length of time, without giving her control of said bonds, though the title as thus passed vests in her, and the trustee is directed to deliver to her at the end of the ten years, said principal and interest on said bonds unpaid in his hands. My executors will also pay her at once a special legacy of two hundred and fifty dollars.

“Item 8. I give Clara May the following bonds, and two hundred and fifty dollars in money: One Miss, levee district refunding bond, four and one-half per cent. denomination

$1,000, number 3 .......................... $1,000.00

Do. number 4.............................. 1,000.00

Cash................. 250.00

“And I hereby constitute the Brookhaven Bank & Trust Company the guardian of the estate which is to be administered to the laws of the state as in ease of guardianship. I ask the said bank if in accordance with then-interest to allow her brother, J. B. Chrisman, Jr., to file such documents as will be necessary in the conduct of the case. If they are unwilling to this, and to a fair fee, then my executor will proceed to have the chancery court appoint her a guardian.”

Appellant contends that the bonds Nos. 3 and 4, having been bequeathed twice and given to two different persons, will be either taken by the two legatees jointly, or go to the last-named legatee. His argument is that:

(1) “ “Where there is a bequest of the identical property to different persons by two clauses in a will, that which is last will revoke the former and' prevail. ” Or (2) “if not, then the parties are tenants in common of the property so devised, each taking half interest therein.”

The main pupose in interpreting a will is to learn the intention of the testator. This is tonbe ascertained from a consideration of the entire instrument, and from the circumstances which surrounded the testator when he executed it. In the case of Watson v. Blackwood, 50 Miss. 15, it was said by Judge Simrahl, delivering the opinion of the court, that:

“Courts will look at the circumstances which surrounded the testator — will through these means put themselves in his place — and then apply the terms of the instrument to its subject-matter and objects. . . . All parts of the will are to be construed in relation to each other, so as to form, if possible, a consistent whole. . . . Although there may be apparent inconsistency and incongruity in several parts, yet if there can be clearly discerned a general intent, that should prevail, and overrule the particular, although the former be first expressed. The governing intent ought to control in the construction, if it can be made compatible with the import of the language used. . . . The governing intent to be gathered from the entire instrument must be adopted as the central idea, to give harmony and system to the testamentary plan. . . . ”

Judge Chrisman in his holographic will written at some length, made a disposition of his entire estate. He gave to his son J. J. Chrisman considerable real estate, and also certain personal property. To his daughter Mrs. Ada Magee he gave considerable real and personal estate. He made these two children his residuary legatees and devisees, and be also appointed them executors, of his will.

In Ms bequest to Ms daugMer Mrs. Magee lie gave ten bonds each of the denomination of one thousand dollars, to be held in trust for ten years by Mr. Z. D. Davis for her use and benefit, and providing disposition of the principal amount in the event of her death before the expiration of the time named. He made gifts to several of his grandohildren. He gave to his daughter Mrs. Ma-' gee Mississippi levee bonds Nos. 1 and 2; to his granddaughter Cathleen Chrisman McFadden bonds Nos. 5 and 6, and to his granddaughter Jennie Nelson bonds Nos. 7 and 8.

It ■will be seen that all of the Mississippi levee bonds in this will were diposed of in the bequests we have just mentioned, except bonds 3 and 4, and it will be seen from the reading of items 7 and 8 in the will that he names those bonds twice: First* in the legacy to Mrs. Bryant; and, second, in that to Clara May.

Now, what was Judge Chrisman’s intention? Was it to give to his friend Mr. Z. D. Davis, as trustee for the use of Mrs. Bryant and her children, the sum of three thousand dollars to be evidenced by three Mississippi levee bonds, the income from which to be expended for her benefit; and was it to give Clara May the sum of two thousand dollars, to be evidenced by two Mississippi levee bonds, wMch were to be held for her benefit by the guardian of her estate ?

It appears from Judge Chrisman’s will that he had made liberal provisions for his son, the appellant, and for his daughter. It was clearly his purpose to accord to his several grandchildren a fair treatment in his provisions for them. It is shown in the testimony that Mrs. Bryant, the granddaughter of Judge Chrisman, was in needy circumstances, and that he, out of the kindness of his heart, had been making provision for her support. He therefore, when he made Ms-will, knew the necessities of Mrs. Bryant and her children. It certainly was his purpose to give for her benefit, and the benefit of her children, the amount stated in his will. It was likewise his purpose to give the amount named to Clara May in the manner he specified. All this is shown, not only by the circumstances and situation of the parties as manifested in the evidence, but also from his very plan and terms of disposing of these amounts in trust for the use and benefit of the beneficiary.

If one should read the will without particularly noticing the description of the bonds, but only read for information as to the disposition of the estate and provisions for the several beneficiaries thereof, there could be no question but that Judge Chrisman intended to give three thousand dollars for the benefit of Mrs. Bryant and her children, and two thousand dollars for the benefit of Clara May.

It does seem to us that the reading of the will will convince, so that there can be no doubt that it was the testator’s intention to give to Mrs. Bryant and her children three thousand dollars in bonds. It is apparent in describing the bonds given in the two legacies, the writing of the Nos. 3 and 4 two different times was a clerical error, and that it was not the. testator’s purpose to give these same two bonds in both legacies, nor to bequeath them to the two parties as tenants in common.

We therefore conclude that the chancellor was right in deciding that the legacy to Mrs. Bryant was a general legacy, and in placing the burden ■ of supplying the two bonds necessary to make both legacies the full amounts intended on the residuary legatees and devisees.

We quote from the final decree to show the finding of the chancellor:

“That the last will and testament of the said J. B. Chrisman is construed so as to hold that item No. 7 in so far as it relates to bonds in the sum of three thousand dollars, is a general legacy to be satisfied by the purchase by the executor out of the general; residue of the estate not specifically devised and bequekthed' levee bonds.”

It follows from what we have Said that we see no force in the contention, by appellant, that there is in this will an identical bequest to two different persons.

It is clear from the will, considered together with the environments of Judge Chrisman and the circumstances under which the instrument was made, that it was evidently his purpose and plan, flowing from the wideness of his charity, to aid his dependent relatives; and, to the end that this might be put into effect, he gave to his granddaughter Mrs. Bryant three thousand dollars, and his granddaughter Clara May Chrisman two thousand dollars, the amounts named respectively in the two items, which amounts were to be held in trust for their benefit, and to be evidenced by interest-bearing bonds.

Affirmed.