Lane v. Vick/Opinion of the Court

Some of the defendants answered the bill, admitting the truth of its statements, and concurring in the prayer for a division, 'among the several claimants, according to the nature and extent of them as heirs, and also under the will of Newit Vick;' others concurred generally, and prayed that their parts might be allotted to them.

The parties made defendants, as vendees, &c., to wit, Prentiss, &c., demurred to the bill; and the cause being set down for hearing on this state of preparation, the court, in June, 1842, sustained the demurrer, and dismissed the bill.

From this decree the complainants appealed.

Ben Hardin, (in print,) for the plaintiffs in error.

Crittenden, for the defendants in error.

This is one of the cases which was argued during an unavoidable absence of the Reporter; and although he is enabled to give Mr. Hardin's argument, he regrets that he cannot furnish that of Mr. Crittenden.

Hardin, after stating the case, proceeded thus:--

From the face of the will, and also the statements of the bill, it appears that the testator owned a tract of land in the Open Woods, a few miles from the Mississippi river, on which he resided at his death; and also two tracts and parcels of land, included in one survey, on the Mississippi, immediately below and adjoining the Walnut Hills. The lands on the Mississippi had only been surveyed when the testator died, and patented after his death. The second clause in the will gives to the wife of the testator, 'for the term of her life on earth, the tract of land at the Open Woods, on which he then resided, or the tracts near the river, as she may choose, reserving two hundred acres, however, on the upper part of the uppermost tract, to be laid off in town lots, at the discretion of my executrix and executors.' The court will perceive that the two hundred acres, on which the town was to be laid off, are expressly reserved out of the devise to the wife of the testator. In the third clause of the will there is the following devise: 'And to my sons, one equal part of my said personal estate, as they come of age, together with all my lands, all of which lands I wish to be appraised, valued, and divided, when my son Westley arrives at the age of twenty-one years; the said Westley having the one part, and my son William having the other part of my tracts unclaimed by my wife Elizabeth; and I bequeath to my son Newit, at the death of my said wife, the tract she may prefer to occupy.' The question from this clause is, what lands were disposed of by it? I contend it is all his lands, except the two hundred acres directed to be laid off into town lots, because the objects the testator had in view in laying off the town into lots, and selling the same for the payment 'of his debts and liabilities,' are utterly inconsistent and incompatible with devising the same away to his sons. And the expression, 'all my lands,' must be understood to mean, except the two hundred acres reserved for the town. Should it be contended that the expression, 'all my lands,' will embrace the two hundred acres to be laid off into town lots, leaving the executors power to sell so much of it as would pay the debts of the testator: the answer to that argument is, that the lands devised to his sons 'are to be appraised, valued, and divided when Westley arrives at the age of twenty-one years.' The time fixed on for a division of the land would, in all probability, arrive before the debts and liabilities of the testator would be paid off, or even known; for aught the court knows or can know, on the demurrer, Westley might have been, at the death of the testator, within one or two years of twenty-one, (which was the fact,) and thereby leave no time, or at least not sufficient time to ascertain his debts and pay them off, and settle all his liabilities, before 'the lands were to be appraised, valued, and divided.' When Westley might arrive at twenty-one years of age the persons appointed to appraise, value, and divide the lands would not know what portion of the lots would be required to be sold to pay the debts. The above reason excludes the idea that he intended to devise said lots, or any of them, to his sons. The whole amount of the debts of the testator, as settled by the court in August, 1829, was $38,704.16. The laying off the town was a mere experiment of the testator to enable his executors to meet his debts and liabilities. It might succeed and pay his debts, and then again it might fall far short. These experiments of new towns to raise funds are as uncertain and precarious as lotteries. And hence it never entered into the design of the testator to will away the unsold lots, after the debts were paid, and to fix on a time certain, when the power of the executors to sell should cease because it must cease 'when appraised, valued, and divided.' There is another argument growing out of the third clause of the will, which I deem conclusive in favor of the position I contend for. The testator had two tracts of land, one in the Open Woods, and one on the Mississippi. His wife had a right from the will to select which she chose for her residence; but the town part of the river tract was expressly reserved, and was not within the devise to her. Suppose she had selected the river tract, then Newit, the son of the testator, was to have that tract 'which she may prefer to occupy;' and Westley and William the other tract, to wit: the Open Woods. If the wife of the testator had selected the river tract, then, at her death, what would Newit Vick take? Just what she selected to occupy, no more or less. For if more was intended, that is the residue of the river tract, if she had selected it, why withhold that part from him until she died, when she by the will had no claim to it? It surely is not compatible with the fair exposition and interpretation of the will to say, that if Mrs. Vick selected the river tract, then Westley and William would be entitled to the Open Woods, and also the two hundred acres off of the upper end of the uppermost tract, which was laid off into town lots. Besides, Westley and William were to have the other part of the tracts unclaimed by his wife Elizabeth. The construction of the will contended for on the other side, just amounts to this, that Westley and William Vick took the two hundred acres which were to be laid off in lots, without the wife of the testantor or his son Newit having any claim to that part. Then why use the words 'unclaimed by my wife Elizabeth,' if she had no claim from the will? The word 'unclaimed' clearly proves that the testator gave no lands to Westley and William, except such lands as the wife of testator had the right to claim as her future residence, if she chose.

The last clause in the will has these words interlined and underscored, 'for the use and benefit of all my heirs.' These words have no meaning in them, if it be only intended that by the sale of his lots to take the burden of the payment of his debts off of his personal estate, and that in that way it would be for the benefit of all his heirs, as all are to have an equal share of that, because that would have been the effect and operation of that clause without the interlineation of the above words. The clear meaning is, the town lots are for the benefit of all my heirs. By adding the word 'and' before the word 'for,' then it would read thus: 'and for the use and benefit of all my heirs.' The word 'and' added would free the will from all ambiguity and uncertainty, and then the interlineation, which was inserted with deliberation, will have some meaning, otherwise it has none; all words and parts of a will shall have some meaning, if by any sensible construction of the will the same can be done. It is certain that the interlineation was inserted after the will was wrote, and the necessity of it was suggested upon the last reading, before signing, which shows that the testator deemed the interlineation essential to carry out his meaning. The fact is, it is well remembered by all present, who are yet alive, that on the reading of his will, one of the daughters of the testator asked him if his daughters were to have an interest in the towns lots; upon the testator answering in the affirmative, she replied, to clear the will of all doubt, the interlineation had better be made, which was accordingly done. I am aware that these facts are inadmissible, but at all events the interlineation goes to show that something of the kind did occur. There is yet another question; the wife of the testator died in about ten minutes after her husband, and was, from the death of the testator, until her death, incapable of making a selection of the place of her future residence, and never made any, or attempted to make any.

If the town lots passed by the will of the testator to his sons, then Newit Vick is entitled to one-third. His answer is a cross-bill, and should have been retained, and, upon a final hearing, one-third allotted to him. I will refer the court to the laws of Mississippi, to show that all the legitimate children inherit equal share and share alike, and also to Swinburn, 20, 21, 22, 638, 639. The meaning of the testator is all that is sought after by the judges. There is another principle of law universally admitted to be correct, that heirs are not to be disinherited by a doubtful construction.

Crittenden, for defendants in error, laid down the following propositions:

1. That (subject to an estate for life to his wife) 'all' the lands of the testator are devised to his sons, in exclusion of his daughters.

2. That the last clause of the will does not affect the devise to the sons, otherwise than by creating a charge upon the town lots for the payment of debts, thereby exonerating and preserving the personal estate for the use and benefit of all the parties to whom it had been bequeathed. And those debts being paid, (as appears by confession of the complainants,) the encumbrance is discharged, and no ground of interest or complaint left to the complainants.

3. That if any right or title, other than above supposed, was devised to the complainants, it is expressly limited and confined to the 'town lots now laid off, and hereafter to be laid off,' &c. By the bill, it appears that the lots laid off by the testator were sold by him, and that no others were thereafter laid off by the executors, to whose discretion it was confided; so that there are no lots to which any right or claim of the complainants can attach.

4. That Lane's appointment as administrator was illegal and void; and, if not, that he had no right to exercise the power and discretion confided in the executors of laying off and selling town lots; and that his laying off lots can confer no right thereto upon the complainants.

5. That the construction of the will insisted on in the 1st and 2d of the above propositions, and the points stated in all the foregoing propositions, have been in substance so decided and settled by the Supreme Court of the state of Mississippi, and that decision will be regarded as conclusive in this court, according to its well established principles.

On the 1st proposition, he cited 10 Wheat., 159; 8 Id., 535; 12 Id., 162, 168, 169; 5 Pet., 155; 16 Ves., 446; 3 Mass., 381; 3 Bibb. (Ky.), 349; 4 Johns. (N. Y.) Ch., 365: and in support of the 5th proposition, 1 How. (Miss.), 379, 442; United States v. Crosby, 7 Cranch, 115; 9 Wheat., 565; 10 Id., 202.

Mr. Justice McLEAN delivered the opinion of the court.

This case is brought here by an appeal from the decree of the Circuit Court for the district of Mississippi.

The complainants under the will of Newit Vick, late of the state of Mississippi, deceased, claim certain interests in a tract of two hundred acres of land, on which the town of Vicksburg is laid off. In the bill various proceedings are stated as to the proof of the will, the qualification of one of the executors named in it, the death of the executrix, and the refusal of one of the executors named to qualify; that the executor who qualified was afterwards removed, with his consent, and Lane, the complainant, appointed administrator, with the will annexed; that acting under the will, the administrator laid off the town of Vicksburg, sold lots, and paid the debts of the deceased; that there yet remains certain parts of the above tract undisposed of; and that his power as administrator to sell the unsold lots is questioned.

The defendants are represented as being interested in the above tract, as devisees and as purchasers; and the complainants pray that the court would decree a partion of the lots, commons, and Levee street, to be made between them and the other devisees of Newit Vick; and that said claimants shall be put in possession, &c.; or that said property may be sold, &c., as shall best comport with the intent of the testator.

The defendants favorable to the object of the bill answered; the others demurred to the bill, which was sustained on the hearing, and the bill was dismissed, from which decree this appeal was taken.

The decision of this case depends upon the construction of the will of Newit Vick. It was proved the 25th of October, 1819.

Every instrument of writing should be so construed as to effectuate, if practicable, the intention of the parties to it. This principle applies with peculiar force to a will. Such an instrument is generally drawn in the last days of the testator, and very often under circumstances unfavorable to a calm consideration of the subject-matter of it. The writer, too, is frequently unskilful in the use of language, and is more or less embarrassed by the importance and solemnity of the occasion. To expect much system or precision of language in a writing formed under such emergencies, would seem to be unreasonable. And it is chiefly owing to these causes that so many controversies arise under wills.

In giving a construction to a will, all the parts of it should be examined and compared; and the intention of the testator must be ascertained, not from a part, but the whole of the instrument.

By the second paragraph of the will under consideration, the testator bequeaths to his wife one equal share of his personal property, to be divided between her and her children. This would give to his wife one-half of his personal estate. But the succeeding paragraph qualifies this bequest so as to give to his wife a share of the personal property equal only to the amount received by each of his children. This shows a want of precision in the language of the will, and that one part of it may be explained and qualified by another.

In the second paragraph, the testator devises to his wife, during her natural life, 'the tract of land at the Open Woods, on which he then resided, or the tracts near the river, as she might choose, reserving two hundred acres on the upper part of the uppermost tract to be laid off in town lots, at the discretion of his executrix and executors.'

This discretion of his executrix and executors, referred to the plan of the town, and not to the propriety of laying it off. The testator had determined that a town should be established, and reserved for this purpose the above tract of two hundred acres, 'to be laid off in town lots.'

The testator next disposes of his personal property to his wife and children; and he says, 'to my sons one equal part of said personal estate as they come of age, together with all my lands, all of which lands I wish to be appraised, valued, and divided, when my son Westley arrives at the age of twenty-one years; the said Westley having one part, and my son William having the other part, of the tracts unclaimed by my wife Elizabeth; and I bequeath to my son Newit, at the death of my said wife, that tract which she may prefer to occupy. I wish it to be distinctly understood, that that part of my estate which my son Hartwell has received, shall be valued, considered as his, and as a part of his portion of my estate.'

By these devises, Newit, on the death of his mother, was to have the tract selected by her for her residence. She died, it is admitted, in a few minutes after the decease of the testator, so that no selection of a residence was made by her. But this is not important as regards the intention of the testator. What lands did he devise to his sons Westley and William? The answer is, the land unclaimed by the wife of the testator. His words are, 'Westley having one part, and my son William having the other part, of the tracts unclaimed by my wife Elizabeth.' But what tracts may be said to come under the designation of 'tracts unclaimed by my wife?' The land which, under the election given to her in the will, she might have claimed as a residence, but did not.

This claim by the widow was expected to be made shortly after the decease of the testator, as by it her future residence was to be established. If she selected the river land, then the Open Woods tract was to go, under the will, to Westley and William; but if the Open Woods tract were selected by the widow, then they were to have the river land. This devise being of the land unclaimed by the widow, presupposes her right to have claimed it in the alternative under the will. It did not include the town tract, for that was expressly reserved by the testator from the choice of his wife. That this is the proper limitation of the devise to Westley and William, seems to be clear of doubt.

To Hartwell was devised the tract on which he lived, and which was to be valued.

These are the specific devises of his lands, by the testator, to his four sons. The tract of two hundred acres reserved for the town is not affected by them. Did this tract pass to his sons under the general devise of his lands to them, in the third paragraph of the will? That point will be now examined. The words of the testator are, 'and to my sons one equal part of said personal estate as they come of age, together with all of my lands, all of which lands I wish to be appraised, valued, and divided, when my son Westley arrives at the age of twenty-one years.' The words 'all of my lands,' unless restricted by words with which they stand connected, or by some other part of the will, cover the entire real estate of the testator. But these words are restricted by the part of the sentence which follows them, and also in other parts of the will.

'All of which lands I wish to be appraised, valued, and divided, when my son Westley arrives at the age of twenty-one years,' follow the words 'all of my lands,' and show that the tract of two hundred acres was not intended to be included in this general devise. Such an intention was incompatible with the reservation of this tract for a town. In the second clause of the will are the words, 'reserving two hundred acres, however, on the upper part of the uppermost tract, to be laid off in town lots.' Now the testator could not have intended, in the next clause, to direct that this tract should be valued and divided among his sons. This would be repugnant to the authority given to his executors to lay off a town, and would have been an abandonment of what appears, from the last clause in the will to have been, with him, a favorite object. Did he intend the tract of two hundred acres should be valued and divided among his sons, which he directed in another part of his will to be laid off into town lots and sold by his executors? So great an inconsisency is not to be inferred. The general devise to his sons 'of all his lands,' was limited to the lands which he directed to be valued and divided among his sons. This cannot be controverted, for it is in the very words of the will, and does not depend upon inference or construction. The special devises to each of his sons, which follow the general devise, also, in effect, limit it. These devises cover all the real property of the testator, except the town tract, and show what he meant 'by all his lands.' He intended all his lands which he subsequently and specially devised, and not the tract which, in the will, he had previously reserved and afterwards disposed of.

In the next clause of the will the testator expresses his wish, that the aforesaid Elizabeth should keep together the whole of his property, both real and personal, (reserving the provisions before made,) for the raising, educating, and benefit of the before-mentioned children.

These exceptions refer to the share of the personal property which each child was to receive when married, or at full age, and to the land appropriated for the town.

We have now arrived at the last clause of the will, under which clause this controversy has arisen. The testator has made provision for his wife, by giving her a life-estate in one of two tracts of land as she might select, and an equal share, with each child, of the personal property. To his sons, in addition to his share in the personalty, he has given to each a portion of his real estate. He has made no disposition of the tract reserved for a town, but proceeds to do so in the following and closing paragraph of the will.

'I wish my executors furthermore to remember that the town lots now laid off, and hereafter to be laid off, on the aforementioned two hundred acres of land, should be sold to pay my just debts, or other engagements, in preference to any other of my property for the use and benefit of all my heirs.'

This clause is construed, by the appellees, to be a charge on the two hundred acres of land for the payment of the debts of the testator only. And that the authority to the executors to sell lots, is limited to this object. That as the personal property bequeathed to his heirs was first liable for the debts of the deceased, the charge on this tract may well be said, in the language of the will, to be 'for the use and benefit of all his heirs.'

That there is plausibility in this construction is admitted. It may, at first, generally, strike the mind of the reader as reasonable and just. But a closer investigation of the structure of the paragraph, and a comparison of it with other parts of the will, with the view to ascertain the intention of the testator, must, we think, lead to a different conclusion.

If the object of the testator had been, as contended, merely to charge this tract with the payment of his debts, would the words, 'for the use and benefit of all my heirs,' have been inserted? The sentence was complete without them. They add nothing to its clearness or force. On the contrary, if the intention of the testator was to pay his debts only, by the sale of lots to be laid off, the words are surplusage. They stand in the sentence, disconnected with other parts of it, and consequently, are without an object.

The testator directed that the town lots should be sold to pay his just debts, 'in preference to any other of his property.' This released his personal property, which he had bequeathed to his children, from all liability on account of his debts. And on the hypothesis that he only intended to do this, why should the above words have been added? They were not carelessly thrown into the sentence when it was first written. From the will, it appears they were interlined. This shows deliberation, and the exercise of judgment. Without this interlineation, the lots were required to be sold to pay debts, in preference to other property, in language too clear to be misunderstood by any one. It could not have been misunderstood, either by the testator or the writer of the will. But, as the paragraph was first written, it did not carry out the intention of the testator. To effectuate that intent, the interlineation was made. The words, 'for the use and benefft of all my heirs,' were interlined. Does this mean nothing? This deliberation and judgment? Were these words added to a sentence perfectly clear, and which charged the land with the payment of the debts of the testator, without any object? Were they intended to be words of mere surplusage and without effect? Such an inference is most unreasonable. It does violence to the words themselves, and to the circumstances under which they were introduced. No court can disregard these words, or the manner of their introduction.

The testator was not satisfied with the direction to his executors to sell lots for the payment of his debts, but he adds, 'for the use and benefit of all my heirs.' By this he intended, that the lots should be sold for the payment of his debts, and 'for the use and benefit of all his heirs.' The omission of the word and has given rise to this controversy. Had that word been inserted with the others, no doubt could have existed on the subject. And its omission is reasonably accounted for, by the fact of the interlineation. On such occasions, more attention is often paid to the matter to be introduced, than to the word which connects it with the sentence. That the lots should be sold 'for the use and benefit of all his heirs,' after the payment of his debts, is most reasonable; but it cannot, with the same propriety of language, be said, that the debts of the testator were to be paid 'for the use of all his heirs.' The word use imports a more direct benefit. That the phrase was used in this sense we cannot doubt.

The clauses in the will preceding the one which is now under consideration have been examined, and no disposition is found in any of them of the town tract. And if it be not disposed of in this last paragraph, after the payment of the debts, the remaining lots or their proceeds will descend generally to the heirs of the testator as personal property. The law will not disinherit the heir, on a doubtful devise. But we think the testator intended that the tract of two hundred acres should be laid out in lots and sold, 'for the use and benefit of all his heirs,' and 'the payment of his debts and other engagements.'

This construction of the will is strengthened by its justice to all the parties interested. That the testator intended to give to his sons a much larger part of his property than to his daughters, is evident. He gave to his sons an equal share, with his daughters, of his personal property. But did he intend to cut off his daughters from all interest in his real estate? He could not have had the heart of a dying father to have done so. He did not act unjustly to his daughters. They, equally with his sons, were devisees of the proceeds of the town lots, after the payment of all just debts and other engagements.

It is insisted that the construction of this will has been conclusively settled by the Supreme Court of Mississippi, in the case of Vick et al. v. The Mayor and Aldermen of Vicksburg, 1 How. (Miss.), 379.

The parties in that case were not the same as those now before this court; and that decision does not affect the interests of the complainants here. The question before the Mississippi court was, whether certain grounds, within the town plat, had been dedicated to public use. The construction of the will was incidental to the main object of the suit, and of course was not binding on any one claiming under the will. With the greatest respect, it may be proper to say, that this court do not follow the state courts in their construction of a will or any other instrument, as they do in the construction of statutes.

Where, as in the case of Jackson v. Chew, 12 Wheat., 167, the construction of a will had been settled by the highest courts of the state, and had long been acquiesced in as a rule of property, this court would follow it, because it had become a rule of property. The construction of a statute by the Supreme Court of a state is followed, without reference to the interests it may affect, or the parties to the suit in which its construction was involved. But the mere construction of a will by a state court does not, as the construction of a statute of the state, constitute a rule of decision, for the courts of the United States. In the case of Swift v. Tyson, 16 Pet., 1, the effect of the 34th section of the Judiciary Act of 1789, and the construction of instruments by the state courts, are considered with greater precision than is found in some of the preceding cases on the same subject.

The decree of the Circuit Court is reversed, and the cause is remanded to that court for further proceedings.