Bell v. Dukes , 158 Miss. 563 ( 1930 )

Mrs. M.W. Dukes filed a bill in the chancery court of Wilkinson county for a partition of certain lands, claiming title through the will of Nathaniel Bowren, which reads as follows:

"I, Nathaniel Bowren of Wilkinson County, State of Mississippi, do make and ordain this my last will and testament, revoking any and all other testamentary disposition by me heretofore made. My funeral and testamentary expenses, including those of my last illness, are first to be promptly paid, then all other of my just debts. I give and devise to my wife, Joanna Bowren, for and during her natural life, my home farm in said County of Wilkinson, containing 13 acres, bounded on the North, East and West by lands of Glass and South by lands of Kingsbury and the Baptist Church lot. Also all the household and kitchen furniture, farm stock, cattle, horses and hogs, vehicles, utensils c, which at my death may be in or about my homestead. Also to my wife, Joanna, I give all other property, real and personal, that I may be possessed of at my death, during her natural life. At the decease of my wife, Joanna, then and thereupon, the realty and personalty in this item bequeathed to her for life, are to belong to her daughter (by a former marriage) Leonora C. Miles, for and during the natural life of the said Leonora C. Miles. Then at the death of Leonora C. Miles, if she shall die without issue, the realty and personalty in this item devised shall belong to George and Rafael, the children of Briton A. and Nancy Price. My executors are, if practicable, to keep the furniture, stock and C. aforesaid on the said farm, to be used to the best advantage for the support of my wife, unless unavoidable for the payment of my debts, they are not to withdraw any of the personalty embraced in this item, but permit my said wife as owner for life to use, control and manage as may to her seem best, and after her death, the same shall be accorded to the said daughter, Leonora — I nominate and appoint Joel Glass of said county Executor of this my last will, of him I require no security.

"In witness whereof I have hereunto set my hand and seal this seventeenth day of August, A.D. 1866.

"NATHANIEL BOWREN. [Seal.]"

She alleged that Leonora C. Miles first married one McCutchen, and that by said marriage she had one son only, J.S. McCutchen; that upon the death of said McCutchen she married George Price, and that by said marriage she had children and issue as follows: complainant in the court below, Mrs. M.W. Dukes and Isaac Price; that when the said George Price died the said Leonora C. Miles then married George B. Ebey, and that of this last marriage there were no children. She alleged further that J.S. McCutchen, the son of Leonora C. Miles McCutchen, died prior to her death, and left a number of children whose names are set forth in the caption of the bill and who were said to be made defendants to the bill; that Leonora C. Miles McCutchen Ebey died on or about August 1, 1927. Joanna Bowren died on or about August 26, 1873. It was also alleged that J.S. McCutchen, the son of Leonora C. Miles McCutchen, during his lifetime, conveyed a portion of the property to other persons named in the bill.

The heirs at law of Nathaniel Bowren are not named in the bill, nor are they made defendants thereto. In the caption of the bill various defendants are named, several of whom are nonresidents of the state, but the record does not show any publication for the nonresident defendants shown in the caption of the bill.

There is a decree pro confesso which was taken against J.S. McCutchen, R.B. McCutchen, H.L. McCutchen, Mrs. Catherine McKey, Mrs. Eola Westmoreland, D.P. McCutchen, and I.M. McCutchen; but this decree did not recite that any publication had been made in accordance with the law, merely reciting that the court being satisfied that said motion should be sustained, "it is therefore ordered, adjudged and decreed that the motion be and same is hereby sustained."

The case was tried on an agreed statement of facts reciting as follows:

"1. That a determination of this cause depends upon a construction of the will of Nathaniel Bowren of record in will book No. 2 at page 254, et seq., which is here referred to, and to be taken as a part of this agreement.

"2. That if under said will Leonora C. Miles became vested with a life estate and her issue, in the event she died leaving issue, became vested with the remainder in fee that in that event complainant owns one undivided third interest in said lands, and that defendant Isaac P. Price owns one undivided one-third interest in said lands, and the other one-third interest is owned by the McCutchen heirs named in the bill of complaint, and that no part thereof is owned by any other defendants.

"3. It is agreed and admitted that Nathaniel Bowren owned the fee simple title to said lands described in the bill of complaint at the time of his death; that his wife, Joanna Bowren, survived him and died in August, 1873. That Leonora C. Miles died on August 1, 1927, leaving the following issue namely, complainant, a daughter, and defendant Isaac P. Price, a son, and the McCutchen heirs named in the bill of complaint, being children of a deceased son, Joe McCutchen. That Leonora C. Miles had no other children or issue except as those named.

"4. It is agreed and admitted that in the event of a sale of said lands that a partition of the same in kind cannot be had and is impracticable and that a sale of all of said lands and division of the proceeds of sale would best promote the interests of all parties."

This agreement was signed by the attorneys for the complainant, H.C. Leak, solicitor for Isaac Price, and D.C. Bramlette, solicitor for all other defendants except the McCutchen heirs.

As parties to a partition suit must stand upon their title, in order to maintain a partition suit it is necessary to determine whether or not the children of Leonora C. Miles took any interest under the will upon her death. They are not expressly given any estate under the terms of the will. It is necessary to determine whether any estate arises by implication.

We think it is perfectly clear that the wife of the testator, Joanna Bowren, took only a life estate, and that Leonora C. Miles, at the death of Joanna Bowren, took only a life estate. The language relied upon to create an estate by implication in the children of Leonora C. Miles is: "Then at the death of Leonora C. Miles, if she shall die without issue, the realty and personalty in this item devised shall belong to George and Rafael, the children of Briton A. and Nancy Price."

There is nothing in the will to indicate what relation George and Rafael were to the testator, nor what relation they were to Leonora C. Miles. There is nothing to be gathered from the will or by any of the surrounding circumstances shown in the pleadings or the agreed statement of facts that make it necessary to create an estate by implication in the children of Leonora C. Miles to give effect to the testator's intention. It is true that the intention of the testator is to be determined from the will as a whole, and that every part of it must be construed together in arriving at a conclusion as to what the testator's intention was. There is nothing in the record showing the surroundings of the testator when he made the will, nor any purpose or intention in the will to create an estate by implication.

In Jones v. Carey, 122 Miss. 244, 84 So. 186, it was held that in order for a will to be effective to vest the fee, it must contain sufficient language and sufficient purpose obtainable from its language, to dispose of the fee, or else the heirs of the testator will take the fee by inheritance, and not by the will, and that while the court will give effect to an instrument disposing of an estate, where such instrument manifests the intention to dispose of all his property, yet it cannot reform a will, so as to give it validity, and cannot, by construction, write into wills provisions which the maker may be supposed to have attempted to make but not evidenced by the terms of the instrument.

The appellee, Mrs. M.W. Dukes relied upon the case of Ball v. Phelan, 94 Miss. 293, 49 So. 956, 957, 23 L.R.A. (N.S.) 895, in which case the devise construed was as follows:

"Item 2nd: I will and bequeath to my daughter Julia T. Hunt, during the time of her natural life, the other half of my property, both real and personal, to be hers, free from the control of any future husband, and also free from the debts of any future husband, he is to have no title by courtesy, or any other title by reason of her death, or is to inherit it through the death of any child or children they may have or in any other manner whatever.

"Item 3rd: In case my daughter Julia should die without child, or in case the child or children should die before marrying or became of age, then the whole property given to my daughter Julia, all for her life, should go to Bettie Hunt Selden, and should she die before she marries or becomes of age, then one-half should be the property of Julia Moore Driver, and other one-half shall be divided between the children of my sisters, Maria L. Joiner and my sister, Leona E. Thompson, and the said Julia Moore Driver shall receive the property only for her natural life, free from the debts and contracts of any present or future husband and should at her death follow the same line of descent as the first mentioned half of the property."

The court there held:

1. That the estate vested in a person under a devise to him for life, with remainder over on his death without issue, is a life estate only.

2. That in order for a devise to arise by implication, the probability of an intention to make the gift must appear to be so strong that an intention contrary to that which is imputed to the testator cannot be supposed to have existed in his mind.

3. That no devise by implication to the issue of a life tenant arises under a devise to him for life, with remainder over on his death without issue, unless the attendant circumstances clearly indicate that the testator intended that the issue of the life tenant should take.

4. That the attendant circumstances there (carefully pointed out) clearly indicate that the testator intended that the issue of the life tenant should take.

A review of the authorities there made, as well as a review thereof made in Bond v. Moore, 236 Ill. 576, 86 N.E. 386, 19 L.R.A. (N.S.) 540; Kales Cas. on Future Interests, 553, discloses that this holding is supported by the English and by weight of the American authorities.

That Ball v. Phelan, supra, so decided clearly appears from the following excerpts from the opinion. After a review of the authorities on the general question of a devise by implication, the court quoted from Bishop v. McClelland's Executors, 44 N.J. Eq. 450, 16 A. 1, 2, 1 L.R.A. 551, that:

"A bequest may undoubtedly arise from implication, but, to warrant the court in so declaring, there must be something more than conjecture to support its declaration. The implication must be a necessary one. The probability of an intention to make the gift must appear to be so strong that an intention contrary to that which is imputed to the testator cannot be supposed to have existed in his mind. A construction in favor of a gift by implication should never be adopted, except in cases where, after a careful and full consideration of the whole will, the mind of the judge is convinced that the testator intended to make the gift."

The court then proceeds:

"Let us now, in the light of these general principles, come to a particular consideration of the authorities relied upon on both sides, and, first, as to the authorities which support the contention that there is here a remainder in fee to Julia's children by implication."

After reviewing these authorities, and holding that Julia Hunt took only a life estate, the court said:

"What, then, is the law where the first taker, like Julia, gets only a life estate? Mr. Jarmon says, in the passage above quoted, on page 556, in the first volume of his great work, as follows: `And even where the language of the will necessarily confines the interest of the parent to his life, the children will not generally be held to take by implication; it is extremely probable that the testator intended a benefit to them; but si voluit non dixit. But it seems that in such a case the court will lay hold of slight circumstances to raise a gift in the children, and thereby avoid imputing to the testator so extraordinary an intention as that the devisee or legatee over is to become entitled if the first taker have no child, but that property is not to go to the child, if there be one, or its parent. . . .' And this rule has been steadily followed in many cases of great consideration. . . . What, now, are the considerations or circumstances which the court in this case should look to as showing, since Julia's estate was limited strictly to life, a remainder in fee by implication in the children of Julia?"

The court then proceeds at some length to set out the circumstances which clearly indicate that the testator intended that Julia's children should have the property after her death.

The circumstances so indicating were there found by the court in the will, and it may be that they should always be limited thereto — as to which we are not called upon to express an opinion. But here the will is barren of any language throwing any light whatever on the question, and none of the circumstances surrounding the testator that would throw any light on his intention are disclosed by the record.

The opinion in Ball v. Phelan, supra, was very carefully written, and much of it would have been superfluous, had the court intended to hold that where, in a will there is a devise to A for life, and should he die without issue, then to B, the words "should he die without issue," are by themselves, without assistance from other parts of the will, sufficient to create a gift by implication to A's issue.

But Ball v. Phelan is not the only case in which this court has held that no devise by implication to the issue arises under a devise of a life estate in property to one with remainder over on his death without issue.

In Jones v. Carey, 122 Miss. 244, 84 So. 186, 187, supra, a testator devised annuities to be paid out of the rents of his lands to his two children, Minnie May Street and Bessie Gray Street, and provided "that should either of the above children die without issue the other child or her heirs shall inherit the entire interest of the deceased one. . . . And should both die without issue, the whole estate shall go to Mrs. Sarah J. McCorkle and her heirs share and share alike."

Both Minnie May Street and Bessie Gray Street died leaving issue, and after their death their children sued the persons in possession of the land in ejectment for the possession thereof, claiming it as purchasers under the will of their grandfather above set out.

The court, after stating that it would not, "by construction or amplification, write into a will provisions which the maker may be supposed to have attempted to write into it," said, "The instrument before us is wholly insufficient to devise the fee from the maker into the grandchildren," and that the case was easily distinguishable from Ball v. Phelan, for there "it was perfectly manifest that the testator . . . did intend to vest it [the fee] in the remaindermen."

We are therefore of the opinion that no estate by implication arises in favor of the children of Leonora C. Miles. The court below was in error in holding that one did arise.

It is doubtful, from the record, whether the nonresidents, against whom a decree pro confesso was attempted to be taken, were before the court. They were necessary parties, and a partition suit without the necessary parties is void; but, as we have reached the conclusion that the complainant had no title or interest to warrant the suit filed by her, it is not necessary to deal with this view of the case, as the decree of the court below must be reversed and the bill dismissed, because complainants had no title to the property sought to be partitioned.

Reversed and dismissed.