Sorsby v. Vance , 36 Miss. 564 ( 1858 )

HARRIS, J.,

delivered the opinion of the court.

The only question involved in this case is, the true construction of the will of the decedent, E. Q. Yance.

The intention of the testator, provided that intention be legal, is the law which regulates the construction of his will. That intention is to be gathered from the whole will, and, from the nature of the subject, overrides all technical rules which relate to the construction of words, rather than the nature of the estate. For though technical rules of law and the authority of adjudged cases are not to be disregarded in the interpretation of wills, yet their construction is so dependent upon the language and circumstances of each particular instrument, “ that adjudged cases become of less authority and more hazardous application, than decisions on any other branch of the law.” 4 Kent. Com. 9th ed. p. 631.

Looking, then, to the will, and the circumstances indicated in it, we think the general intention of the testator, and his general disposition towards the objects of his bounty, was, first, equality among his children, and'trust and confidence in his wife as a means of its attainment; and second, ample provision for his wife.

The first clause of the will gives to his wife a tract of land and all his slaves and their increase, “ after she pays off the following legacies,” to wit: To each of the children “ as they respectively come of age or marry, ten slaves.” To each “ a good classic education.” To the sons “a profession,” if they desire it, “the expenses to be paid out of the estate or its proceeds, independent of the legacies therein contained.” To each of the children, “as they respectively arrive of age or marry, one-fourth part of all the residue of his estate, real and personal, that may have been on hand at the time the eldest arrived of age, and not disposed of by the special legacies.” To Calvin Yance, his nephew, a negro boy, or $700. “ All the rest and residue” of his estate, he gives to his wife.

He then gives to his executrix (his wife) full and ample power to dispose of any portion of his estate, as she may think best for the benefit of herself and children, and “ to invest any surplus cash in property, as she may think most advantageous to the estate.”

Subject to these dispositions, he desires his wife to have not only the lands and negroes specifically devised to her, but also all the residue of his estate. She is to raise and educate their children, to give them each ten slaves as they respectively come of age or marry, and-one-fourth part of all the residue of his estate; that fourth part to be ascertained by looking to the condition and value of the estate, real and personal, not devised specially, when the eldest child comes of age.

If the eldest married before she came of age, she could only have at that time the ten slaves, as her remaining “ one-fourth” of the estate, could only be ascertained by reference to the condition of the estate at the period fixed by the will, to wit, when she “ arrived of age.” He intended that the value and condition of his estate at this period, should be regarded and referred to as the standard of equality and division among his children. He did not intend a severance of the interests of the unmarried minors, until the event of marriage or full age; but “as each respectively” attained, to either of these states, he or she should have an equal portion, allotted to the oldest child when she “ arrived of age.”

He confided the disposition of his whole estate to his wife, subject to these trusts, thereby superadding to her natural duty, the powers, trusts, and authority, imposed by its terms. He intended that his wife and children during minority, should continue as one family, as in his lifetime; that the whole property should be kept together, and its proceeds enjoyed together, for their common support, under the control of the mother, as the natural head, until they respectively arrived of age, thereby making her trusts, and obligations, and rights, under the will, co-existent and co-extensive with her natural duty. And after these several trusts were thus discharged and ended, the land, and negroes, and all the residue of his estate, with its accumulations, after the period when the oldest child arrived of age, were absolutely vested in her, the wife, discharged of all trusts.

Regarded in this view, the will is natural, equal, just; beneficent alike to all the children, and still liberal to the wife, and promotive of their best interests and happiness as a family; securing parental authority to the mother while it should exist, and a just portion to each of his children when of age.

While, therefore, the wife’s right to the land and slaves vested in interest at the death of the testator, so far as to entitle her to the possession thereof for the execution of the trusts of the will, and to an inchoate right of future enjoyment, they did not vest in her the absolute title and right to their separate and exclusive enjoyment, until after the payment of the legacies and the performance of the trusts, and after the youngest child becomes of age or marries, at which time her interest becomes vested absolutely.

We think, therefore, the court below erred in overruling the exceptions to the answer, so far as the same tended to ascertain from the executrix, the amount and value of the estate on the day the eldest child, Mrs. Sorsby, arrived of age; and also in the construction of the will of decedent.

For these errors, the decree of the Probate Court will be reversed, and cause remanded for further proceedings, in accordance with this opinion.