Nations v. Colonial & United States Mortgage Co. , 115 Miss. 741 ( 1917 )

Cook, P. J.,

delivered the opinion of the court.

We avail ourselves of the succinct statement of the case and the point to be determined upon this appeal appearing in appellee’s brief, viz.:

“This is an appeal from a decree of the chancery court of Tallahatchie county, Miss., for the Second judicial district, sustaining the demurrer of the defendants and dismissing the complainant’s bill.

“Appellant alleges in her bill that on the 24th day of October, 1904, her grandmother, the late Mrs. Mattie E. Frank, was the owner in fee of certain lands mentioned in the bill; that on that date she made and published a last will and testament; that she died at her home in Tallobusha county, Miss., on the - day of March, 1908; that said will was thereupon admitted to probate by the chancery court of Tallahatchie county, Miss.; and that thereafter, to wit, on December 11, 1911, a duly authenticated copy of said will was recorded in the record of wills for the Second judicial district of Tallahatchie county (in which county the said lands lie).

“The bill further alleges: ‘That by the terms of said last will and testament Mrs. Mattie E. Prank devised and bequeathed to her daughters, Miss Laura M. Powell and Miss Mary Adelle Powell, all of her real estate, including the lands hereinabove described, share and share alike, with the provision that in case of their death the children of each, the said Laura M. Powell and Mary Adelle Powell, should inherit their respective shares, and, in case of the death of one of them without children, then the whole of the estate devised should go to the other.’

“The bill further alleges that the said Mary A. Powell died before her mother, the testatrix, and that she died childless; that the said Laura M. Powell survived her mother, and, subsequent to her mother’s death, married Wilson B. Nations; that on the 25th day of March, 1915, the said Laura M. Nations and her husband, Wilson B. Nations, executed and delivered a deed conveying said lands to Harrison Holt, as trustee,, one of the defendants, for the benefit of the Colonial & United States Mortgage Company, Limited, the other defendant, to secure the payment of an alleged debt of three thousand five hundred dollars, principal, and ten interest notes of two hundred and sixteen dollars each, which said deed of trust is of record in the office of the chancery clerk of the Second district of Tallahatchie county, Miss., in Book 7, p. 418; that shortly thereafter, to wit, on the 22d day of April, 1915, the said Laura M. Nations (née Powell) died, leaving only one child, the complainant; and complainant’s claim is that her mother, the said Laura M. Nations, the sole legatee and devisee under the will of the said Mattie E. Prank (the said Mary Adelle Powell having predeceased the testatrix), took only a life estate in the property devised, and that at her mother’s death title in fee passed to complainant, her only child.

“The prayer of the bill was that a decree might be entered canceling and holding for'naught the said deed of trust described in the bill as a cloud upon the title of complainant to the lands covered by said trust deed, and for a writ of injunction enjoining the defendants, and each of them, their assigns, successors, agent, and attorneys, from attempting to assert any claim under the said deed of trust, and for general relief.

“On the other hand, defendants based their demurrer upon the proposition that the said Mary Adelle Powell having died without children during the lifetime of the testatrix, her codevisee, the said Laura M. Powell, under the provisions of said will, took the whole estatte in said lands in fee — from which the court will see that the only question in the case is the proper construction of the will of Mrs. Mattie E. Prank.

“As shown by the will, a copy of which is filed with the bill as 'Exhibit A,’ the exact language of paragraph 4, as to the construction of which opposing counsel so radically differ, is as follows: '(4) I will and bequeath to my daughter, Miss Laura M. Powell and Miss Mary Adelle Powell, the balance of my estate, real and personal of every kind and description, absolutely share and share alike, and in the case of their death, then the children of each of the said Laura M. Powell and Mary Adelle Powell shall inherit their shares respectively, and in case of the death of one without children, then the. whole of my estate shall go to the other, and in case of the death of both without children then my estate shall go to my brothers and sisters then living.’

Appellant seems to assume that our statutes control the construction of this will, and that, because of our statutes, sections 2764, 2765, 2776, and 2778, Code of 1906, the chancellor misinterpreted the will.

We ar.e of opinion that the chancellor did not err, and that the sections of the Code referred to are not inconsistent with the Construction adopted by him.

This court, in Sims v. Conger, 39 Miss. 310, 77 Am. Dec. 671, said:

“The rule is well settled, by numerous cases, that in a bequest to A., and ‘in case he dies,’ or ‘in the event of his death,’ simply, without further words of contingency, over to B., the contingency intended is the death of A. before, the testator; and hence, if A. survived the testator, that he takes absolutely. The reason of this rule is that death, being a certain and inevitable event at some time, cannot be supposed to be the contingency really intended by the testator, and therefore that construction must be resorted to to ascertain the contingency contemplated; and as no reasonable contingency can be suggested to the mind from the words used, but that of the legatee dying before the testator, that is adopted as the contingency intended in such cases. Hinkley v. Simmons, 4 Ves. Jr. 160; King v. Taylor, 5 Ves. Jr. 806; Cambridge v. Rouse, 8 Ves. Jr. 12; Webster v. Hale, 8 Ves. Jr. 410; Ommaney v. Beavan, 18 Ves. Jr. 291; Wright v. Stephens, 4 Barr. & Ald. 674. These are cases where the terms of contingency are simply the death of the first taker and a limitation over in that event.

“In some cases, the death of the first taker has been held to mean his death at any time, notwithstanding the terms of limitation were simply ‘upon his death.’ But this has been by reason of other expressions or dispositions in the will, indicating that such was the intention or justifying such interpretation.”

For other authorities, see 40 Cyc. 1499 et seq.; 30 A. & Eu Ency. of Law, 785.

Affirmed.