In re Wills of Miller , 70 Tenn. 54 ( 1878 )

Cooper, J.,

delivered tbe opinion of the Court.

In this agreed case, the rights of the parties turn upon a construction of the will of John M. Miller and Joseph Miller, and as to some of the parties on the construction of our statutes of descent.

John M. Miller, who was a son of Joseph Miller, died on the 29th day of August, 1850, leaving a widow who is still living without ever having married again, and live children, Susan Miller being one of them* On the 14th day of June, 1865, Susan Miller intermarried with her cousin Archie W. Miller, had one child by him named John M. Miller, and died intestate on the 2d of August, 1866. The child John M. died the following month, his father, Archie W. Miller, and Ms half sister Dora Miller, a child of the father by a former marriage, surviving. The father died on the 9th of February, 1873, and Dora died in the month of October in the same year, both intestate.

There were living at Dora’s death, her maternal grandfather James Alexander, her maternal uncle Charles S. Alexander, three uncles on her father’s side, Thomas Miller, Joseph Miller and B. G. Miller, and two aunts, Susan Lockey and Jennie Donelson on the side of both father and mother, being equally related to each.

By his will, John 'W. Miller, after providing in the first clause of his will for the payment' of his debts and funeral expenses, expresses his wishes thus:

“ Second. I • give to my beloved wife Mary Ann Miller, all of my estate, real and personal, during her widowhood or natural life; should she never marry, to hold the same to help her school and raise the children, till said children come to the age of twenty-one, or leave her. She may give them their portion, or so much as may be agreed by her and my executors; and should she marry, then to take the course the law has laid down.”

“ Third. I do hereby appoint my father Joseph Miller, my beloved wife Mary Ann Miller, and Andrew K. Miller my executors, with power to sell any of my property, real and personal, and to make any trade of any kind that they may think will be for the comfort and interest of my beloved wife and children.”

If his widow should marry again, the testator’s will is that her interest in his estate should be cut down to what the law would give her had he made no testamentary disposition, namely, dower in the realty, and a child’s part in the personalty. Hughes v. Boyd, 2 Sneed, 512; Duncan v. Phillips, 3 Head, 415. If, however, she remained a widow, the whole estate, real and personal, was given to her for life, with power to advance to the children “ their portion,” as might be agreed upon between her and the executors. No point is made in the agreed case upon the exercise of this power. The third clause of the will merely clothes the executors with a discretionary trust to sell or make any trade in relation to the property devised, if necessary “ for the comfort and interest ” of the wife and children. The agreed case does not show any exercise of this power, and it obviously contemplates only a change of form, not an interference with the vested rights of wife or children.

The power given to the widow to advance to the children “ their portion,” or so much thereof as may be agreed upon, recognizes the fact that the children have a fixed portion of the property vested in each child. This must be either by the will or by the law. The will itself is otherwise silent on the subject, and the conclusion of the Chancellor seems to be irresistible, that the decedent died intestate as to the remainder, and that each child became, at his death, vested by law with one undivided one-fifth share of the property in remainder, to be enjoyed upon the termination of the estate given to the widow by the will, or sooner by the exercise of the power of advancement.

. In this view, upon the death of Susan Miller, one of tbe children of John M. Miller, on the 2d of August, 1866, the widow still living, her vested interest in remainder in the personalty of her father’s estate passed to her husband Archie W. Miller, jure mariti, and, upon his death, to his personal representative. Tune v. Cooper, 4 Sneed, 295. No question has been made about this personalty, and perhaps there is none. If there be, Archie W. Miller’s daughter was his next of kin when he died, and the father’s personal representative would recover it for the benefit of her personal representative, and the latter, in the events which have happened, would distribute it to her next of kin, her maternal grandfather, James Alexander. Code, section 2429, sub-sec. 7; Lattimer v. Rodgers, 3 Head, 692.

Susan Miller’s vested interest in remainder in her father’s real estate descended, on his death, to her- son John M. Miller. Code, section 2420, sub-sec. 1. Upon his death, it passed to his half sister, Dora Miller. Although the link in the chain of descent has been generally conceded, and the struggle has been over the-point as to who is the heir of Dora, yet the examination of our statutes of descent must commence here in order to enable us to take the next step. For, Avhen we look at the mere letter of the act, no express-provision for a brother or sister of the half blood is made, except in the second sub-section of section 2420, which provides for the descent of estates “acquired” by the intestate, and it is precisely upon the meaning of this word that much of the argument submitted has been made to turn. The same absence of express provisions in the statute for a surviving parent, where the parent representing the line of transmission is dead, is noticed by Judge Sneed in Towls v. Rains, 2 Heis., 359.

The Code, it must be borne in mind, as was held by this court immediately after its adoption and has been repeated at this term, is a compilation of the existing laws. “In doubtful cases, it will be presumed, that it was not intended to change, but only to revise or compile the old statutes.” Bates v. Sullivan, 3 Head, 632; Tennessee Hospital v. Fuqua, 1 Lea, 611. Moreover, the Code plainly tells us that the intention was to cover the whole law of descents. The section which gives rise to the litigation, commences thus: “The lands of an intestate owner shall be inherited in the following manner by his lineal descendants, collateral kindred, or ascendants.” It is claimed that the revisers and the Legislature supposed that the whole of the existing law was brought forward, and that they intended to leave no case unprovided for. Of course, they may have been mistaken, but it would ' be very curious if the omission had escaped the scrutiny of the profession for twenty years.

The article of the Code on the subject of descents was originally prepared, as the writer of this opinion knows, by Mr. Meigs, whose analysis of the laws of descent as shaped by our decisions had previously been embodied in his digest. The whole draft of the article was re-cast in the legislative , committee by the same eminent Reviser, with the active aid and supervision of the chairman of the committee, the Hon. Joseph B. Heiskell; who has recently retired from the office of Attorney General and Reporter for the State. I had myself, as one of the Revisers of the Code, drawn up the statutes in a different form, but I acquiesced in the revision as adopted. While I know the intention of the draftsman, I concede that the intention must be determined, as in other cases, by the language actually used.

The Code, section 2420, divides the subject of descents, and makes provision for three classes of cases.

1st. Without reference' to the source of the intestate’s title.

2d. Where the estate was “ acquired ” by the intestate and he dies without issue.

3d. Where the land came to the intestate by gift, devise or descent from a parent or the ancestor of a parent, and he dies without issue.

It will be noticed that the last two divisions make no provision for the case where the intestate in either of these classes, dies leaving issue. Consequently, there is a casus omissus under both these divisions, unless we can look to the provisions of the first division to complete the descent. On the other hand, neither the first r.or the third division provides expressly for the half blood of brothers and sisters, nor for the contingency of both parents surviving the intestate, and the plan of inheritance is incomplete unless we can supply the deficiencies by means of the details of the second division.

Looking closely to the provisions of the entire section, it will be seen that the first sub-division merely says tbat an intestate’s descendants, if there be any, shall in all cases inherit his lands, and so shall a surviving parent where there are no issue, nor brother and sister or their issue. So, the third sub-division only provides, in the case specified, that the brothers and sisters of the whole blood, and the parent, or his heirs, from whom or whose ancestors the land came, shall be preferred. All other contingencies are unprovided for, unless covered by the second sub-division. And this sub-division does exactly supplement the deficiencies of the other two. According to all the rules of statutory interpretation, these clauses would require to be read together, even if separated by sections or pages, for they are in pari materia. To consider each paragraph as having no connection merely because numbered consecutively, although parts of only one section and preceded by a delaration that they cover the whole field of descent, would be utterly without reason. Obviously, the first and third sections were intended for particular contingencies, and the second section to provide for every other supposable case. The word “ acquired ” was used in the broad sense, so as to cover lands which might come to the intestate in any other way than “by gift, devise or descent from a parent or the ancestor of a parent.” The case of Penniman v. Francisco, 1 Heis., 511, was correctly decided, the facts bringing it clearly within the first sub-division of section 2420 of the Code. But if the father of the intestate had been dead, there would have been no provision for the further descent of the property in that case except under the second sub-division. The suggestions of the Chief Justice that the intestate did not “ acquire ” the title within the section, because she inherited it from her grand uncle, was obiter, not necessary to the decision, and -in the light of a more critical examination upon a, state of facts requiring it, incorrect.

The land in controversy did not come to Dora Miller “ by gift, devise or descent from a parent or the ancestor of a parent,” but was “acquired” by inheritance from her half brother. Upon her death without issue, brothers or sisters or their issue, or parents, it descended, under the provisions of the second subdivision of section 2420, to the heirs of the father and mother in equal degree, there being such heirs, in “ equal moieties.” It is agreed that the word “ moieties” in this connection means shares, and that the paternal and maternal uncles and aunts of Dora take equal shares. But the preceding paragraph of the subdivision provides .that if the parents be living, they shall take the land as tenants in common, that is, in equal moieties. If either parent be dead, the surviving parent would take under the first sub-division. If both be dead, the law contemplates that the heirs of both shall take precisely as if each had taken when alive, and then died. The paternal uncles and aunts will take one moiety of the land in equal shares, and the maternal uncle and aunts will take the other moiety in equal shares. The result will be to give to the two aunts, who were equally related to the intestate, on both the father and the mother’s side, a share in each moiety. This is in accordance with the decree of tlie Chancellor, and the same will be affirmed* so far as the descent of this land is concerned.

Joseph Miller, the father of the preceding testator John W. Miller, died on the 13th of November, 1858. By the third item of his will, he gave the other land in controversy in this case to his wife, Susanah Miller, for and during her natural life. The next item of the will reads thus: “ Item 4th. At the death of my wife Susanah, I give and devise to my only surviving child, Nancy Jane Alexander, wife of James Alexander, all the balance of my home tract of land, etc., for and during the joint and several lives of the said Nancy Jane and her husband, James Alexander, with remainder over to my grand children then in being, and to the heirs and representatives of those grand children who may have died.”

Susanah Miller, the widow of the testator, died on the 1st of November, 1863. Nancy Jane Alexander, the testator’s daughter, died on the 28th of March, 1870. James Alexander, the husband of Nancy Jane, is still living. At' the death of the testator, he had fourteen grand children, Archie W. Miller and Susan Miller who intermarried as before mentioned being two of them, and all of these grand children were also living at the death of Susanah, the testator’s widow. There has been no increase in the number of grand children since the testator’s death, and only two of them have died, namely, Archie W. Miller and Susan his wife, as hereinbefore stated. The rights of the parties turn primarily on the construction of Joseph Miller’s will.

Omitting useless words, ■ and reducing the 4th clause of the will to its simplest ■ elements, the testator says: “At the death of my wife, I give my home tract of land to my only surviving daughter for the lives of herself and husband,” “with remainder over to my grand children then in being, and the heirs and representatives of those who may have died.” The mention of the “lives” of the daughter and husband, is for the purpose of defining the quantum of the daughter’s estate, and not to designate a point of time to which the words “then in being” may relate. The testator does not say that the remainder. shall go to the grand children, etc., in being at the death of the daughter, or at the death of the son-in-law, or at the expiration of the estate given the daughter. If we fix upon either one of these dates, it would be merely by implying the intent, not because the intention is distinctly expressed. Nor is there anything in the will, or in the situation of the testator’s family at the date of the will, or in the events which have happened, to require such an implication. On the other hand, the language used admits grammatically as' well as naturally, of a construction which allows the word “then” its usual meaning, and gives it a point of time to which it may fairly refer. I give, says the testator, certain lands to my wife for life, and, “at the death of my wife, ”1 give the same land to my only daughter for two “ lives,” “ with remainder to my grand children then in being,” etc. The -estate of the daughter and of the grand children is to vest at the same point of time, — the one in possession and the other in remainder, and that time,- — -the death of the wife. This is the plain meaning of the words without refining upon them, drawing inferences more or less remote, or resorting to the presumptions of law in favor of the vesting of estates at the earliest point of time.

In this view, the share of Archie W. Miller in his grandfather’s estate, vested in him at the death of the testator’s wife, and, at his death, descended to his daughter Dora, and, on her death, to her three paternal and two maternal aunts equally, under the Code, section 2420, sub-section 3. The share of Susan Miller in her grandfather’s estate vested in like manner at the death of the testator’s wife, and descended, on her death, to her son John M. Miller, and, on his death to his half sister Dora, and, on her death, under the Code, section 2420, sub-section 2, as did Susan Miller’s share in her father’s realty, in equal moieties to the heirs of the said Dora’s father and mother, the two aunts taking a share in each moiety.

The degree of the Chancellor, with the modification touching the personalty of the estate of John M. Miller, if any, is affirmed.