Summary
finding the testator's will devised to his daughter an estate in fee simple defeasible subject to an executory limitation
Summary of this case from Flowers v. Estate of Flowers (In re Estate of Flowers)Opinion
No. 38015.
October 8, 1951.
1. Wills — instrument in form of deed but to take effect only after grantor's death.
An instrument purporting in form to convey described lands but with an express provision that it should take effect at death of grantor, and not sooner, was a will rather than a deed, since it was inoperative to vest any present interest.
2. Executors and administrators — grant of intestate administration — intestacy — res adjudicata.
A grant of intestate administration is not a conclusive adjudication of intestacy, and is not a bar to a subsequent probate of will. Sec. 537 Code 1942.
3. Executors and administrators — wills — grant of intestate administration — intestacy — res judicata — estoppel.
Where an instrument was considered by all the parties in interest as a deed and not a will and in that view there was a grant of letters of administration on the estate of the deceased grantor, without submitting to the court for its consideration the effect of the instrument, the intestate administration was not res judicata of the issue whether the instrument was a will, and none of the parties are thereby estopped presently to assert that the instrument was a will and not a deed. Sec. 537 Code 1942.
4. Wills — probate — witnesses not available — secondary evidence.
Where subscribing witnesses are not available secondary evidence may be used to establish a will.
5. Acknowledgments — presumption of correctness.
The certificates of a notary public and also of the clerk of the chancery court carry a presumption of correctness in the absence of clear and convincing evidence to the contary.
6. Evidence — wills — proof of ancient document.
It is not necessary to call the attesting witnesses to prove a will more than thirty years old reckoned from the death of the testator, even though the witnesses are living; at least, if possession has been held under the will for thirty years, and there is nothing to arouse suspicion as to the trustworthiness of the instrument, — so held of an instrument which had been, and remained, recorded in the public records for fifty-nine years prior to its probate as a will.
7. Adverse possession — life tenant — burden of proof.
Where the devisee of a life tenant contended that the life tenant had acquired title in fee as to the entire estate by adverse possession, the burden of proof was upon the party, so contending, to establish the unequivocal ouster required of the life tenant as against her remaindermen or the owners of the executory interest, and when there was no sufficient proof that the possession of the life tenant had been other than that which was consistent with that of a life tenant or the holder of a determinable fee, the contention is not maintained.
8. Wills — executory limitation over to lawful heirs of testator — meaning of phrase.
Where a will devised certain land to testator's wife and daughter as joint tenants with survivorship and further provided that if both the devisees shall die without heirs, descendants of the testator, the property shall go to the lawful heirs of the testator in fee simple, the phrase "without heirs descendant of the testator" meant children of the surviving devisee in the popular sense and not in any technical sense; that is to say, children of her own.
9. Wills — deeds — contingent or executory limitation — statute — time of determination of heirship.
The statute dealing with limitation on failure of issue has reference only to a situation at common law where there would be construed to exist an indefinite failure of issue and thus a void fee tail estate, and is therefore not applicable to the case outlined in the next foregoing headnote in which case the lawful heirs of the testator who would take under the executory limitation or contingent remainder would be the children of the testator living at the time of the death of the life tenant. Sec. 837 Code 1942.
10. Wills — deeds — holder of a prior estate, not barred from taking share in executory estate.
The fact that the holder of a prior estate is a member of the class to which the executory interest is given does not exclude him or her from an interest in the executory limitation, so that although the daughter mentioned in the foregoing headnotes became by her survivorship in the joint tenancy the holder of a life estate she was not thereby prevented from taking a share of the executory estate as one of the testator's lawful heirs, the daughter having survived the testator.
11. Wills — deeds — descent and distribution — transfer of executory interest.
The executory interest obtained by the children of the testator living at the time of his death from the will outlined in the foregoing headnotes was transferrable by devise, deed and descent and distribution.
Headnotes as approved by Ethridge, C.
APPEAL from the chancery court of Wilkinson County; R.W. CUTRER, Chancellor.
Maxwell Bramlette, Clay B. Tucker and H.C. Leak, for appellants L.I. White and R.I. Lessley.
I. (a). Whether the instrument dated October 28, 1889, and recorded in Book GG at pages 407-408 of the Conveyance Records of Wilkinson County, Mississippi, is a deed or a will? Secs. 1187, 1190, 1197 Code 1880; Alexander, et al. v. Richardson, 106 Miss. 513, 64 So. 215; Baker v. Richardson, 96 Miss. 394, 50 So. 447; Wall v. Wall, 30 Miss. 91, decided in 1855; Cunningham v. Davis, 62 Miss. 366, decided in 1884; Sartor v. Sartor, 39 Miss. 760, decided in 1861; Exum, et al. v. Canty, et al., 34 Miss. 533, decided in 1857; McDaniel v. Johns, et al., 45 Miss. 632, decided in 1871.
(b). If in error as to interpretation of the statutes and decisions of this Court in effect at the time the instrument here was executed and delivered, then we say instrument here should be a deed and not a will because of the practical construction placed thereon by the parties for more than forty-nine years. Baker v. Richardson, 96 Miss. 394, 50 So. 447; Sumter Lbr. Co. v. Skipper, et al., 183 Miss. 595, 184 So. 296; Cummings v. Midstates Oil Corp., 193 Miss. 675.
(c). If in error as to instrument being a deed, then we say that because of the administration on estate of B.R. Inman in 1899-1900 by chancery court of Wilkinson County, wherein court adjudicated B.R. Inman to have died intestate, the question of whether the instrument is a deed or a will is res judicata. Gill, et al. v. Johnson, et al., 206 Miss. 707, 40 So.2d 600; Cotton v. Walker, 164 Miss. 209, 144 So. 45; Darrow, et al. v. Moore, et al., 163 Miss. 705, 142 So. 447; Love v. Mayor Board of Aldermen of Yazoo City, 162 Miss. 65, 138 So. 600.
(d). Estoppel of Carrie Harris to assert instrument to be legal will or deed because of Inez Inman MacLeod asserting instrument to be a deed in 1899, taking possession of real estate thereunder as deed and enjoying use and profits therefrom from 1899 to date of her death on 3rd day of August, 1948. Am. Jur. Vo. 19, Sec. 64, p. 682; Barrier, Jr. v. I.M. Kelly, et al., 82 Miss. 233; West v. West, 131 Miss. 880, 95 So. 739.
(e). Impossibility at this late date of proving instrument to be a will under existing statutes as original instrument is lost. Sec. 498, Code 1942, as amended by Laws 1946 at page 532; Peebles v. Rodgers, 50 So.2d 632.
II. Are the lawful heirs of B.R. Inman determined as of the date of his death on March 15, 1899, or determined on the date of the death of Inez Inman MacLeod on the 3rd day of August, 1948? Secs. 1203, 1271, Code 1880; Sec. 468 Code 1942; Sims v. Conger, et al., 39 Miss. 231, decided in 1860; Banking Co. v. Field, 84 Miss. 646; Black's Law Dictionary, DeLuxe Ed., defines "lawful heirs"; Darrow v. Moore, 163 Miss. 705, 142 So. 447; Harris, et al. v. McLaran, 30 Miss. 533, decided in 1885; Alexander, et al. v. Richardson, 106 Miss. 517; Halsey v. Gee, 79 Miss. 193; Harvey, et al. v. Johnson, et al., 111 Miss. 566, 71 So. 824; Schlater, et al. v. Lee, et al., 117 Miss. 701, 78 So. 700; Thompson, et al. v. Green, 145 Miss. 365, 110 So. 788; Magee v. Moorehead, et al., 154 Miss. 828, 123 So. 881; Copenhaver, et al. v. J. Sheffey Pendleton, et al., 77 A.L.R. 324; Cross v. O'Cavanaugh, 198 Miss. 136, 21 So.2d 473; Caldwell v. Willis, 57 Miss. 555; Allen v. Allen, 145 Miss. 368, 110 So. 685.
III. Whether or not W.L. Inman and Susie Inman Stewart as heirs at law of B.R. Inman, deceased, and ulterior limitees in the instrument dated October 28, 1889, were vested with such right, title and interest in the land in controversy on the date of the death of B.R. Inman on the 15th day of March, 1899, that they could alienate such interest by will? Branton v. Buckley, 99 Miss. 116, 54 So. 850, L.R.A., 1917C, 527; Allen v. Allen, 145 Miss. 368, 110 So. 685; Alexander, et al. v. Richardson, 106 Miss. 517, 64 So. 217; Hamilton v. City of Jackson, 157 Miss. 284, 127 So. 302; Ricks, et al. v. Merchants National Bank Trust Co. of Vicksburg, et al., 191 Miss. 323, 2 So.2d 344.
IV. Adverse possession had no effect on remaindermen since Inez Inman MacLeod went into possession of land in controversy on the 15th day of March, 1899, under claim and assertion that instrument dated October 28, 1889, was a deed and not a will and this contention was upheld by chancery court of Wilkinson County, Mississippi, in the administration of the estate of B.R. Inman. Magruder v. Stewart's Admrs., 4 How. (5 Miss.) 204; Gibson v. Jyne, 37 Miss. 164; Wilson v. Parker, 14 So. 364; Hoskins v. Ames, 78 Miss. 986, 29 So. 828; Myers v. Viverett, 110 Miss. 334, 70 So. 449; Wright v. Sullivan, 207 Miss. 249, 42 So.2d 185; Bohn v. Bohn, 193 Miss. 122, 5 So.2d 429; Clark v. Foster, 110 Miss. 543, 70 So. 583; Carter v. Moore, et al., 183 Miss. 112, 183 So. 512; Cox v. Richardson, et al., 186 Miss. 576, 191 So. 99; Spearman, et al. v. Hussey, et al., 50 So.2d 610.
Truly Truly, and John T. Laycock, for appellant Carrie V. Harris.
I. The proceedings in the attempted probation of the instrument involved in this case should not have been admitted in evidence because (1) the instrument was not a will and should not have been allowed to probate, and (2) the proceedings show on their face that the instrument was not probated in compliance with the statutes governing probation of wills. Edwards v. Smith, 35 Miss. 197; 68 C.J., Wills, Sec. 235, p. 617; Watts v. Watts, 198 Miss. 246, 22 So.2d 625; Peebles v. Rodgers, 50 So.2d 632; Rylee v. Union and Planters Bank Trust Co., 122 Miss. 385, 84 So. 247; 68 C.J., Wills, Sec. 620, p. 890; Secs. 496, 498, 499, 500, 501, 509 Code 1942; Warren v. Sidney's Estate, 183 Miss. 669, 184 So. 806; Moore v. Parks, 122 Miss. 301, 84 So. 230; Didlake v. Ellis, 158 Miss. 816, 131 So. 267.
II. Appellees cannot now contend that this instrument is a will because they are estopped by the proceedings in Cause No. 81 of the General Chancery Docket of Wilkinson County, Mississippi, in which B.R. Inman was declared to have died intestate, and said adjudication of intestacy is now res adjudicata. Secs. 1850, 1939, Code 1892; Secs. 525, 623, Code 1942.
III. The instrument involved in this case being invalid as a deed or as a will, B.R. Inman died intestate and Inez Inman MacLeod acquired the entire fee simple title to the land involved by adverse possession. If she was a life tenant as contended, she also acquired the fee simple title by adverse possession. Gaston v. Mitchell, 192 Miss. 452, 4 So.2d 892, 6 So.2d 318; Ates v. Ates, 189 Miss. 226, 196 So. 243; Smith v. Buffington, 176 Miss. 889, 170 So. 816; Kelly v. Covington, 119 Miss. 658, 81 So. 485; Peeples v. Boykin, 132 Miss. 359, 96 So. 177; Davis v. Gulf Refining Co., 202 Miss. 808, 32 So.2d 133, 34 So.2d 731; Chatman v. Carter, 45 So.2d 841; Thomasson v. Kinard, 153 Miss. 398, 121 So. 109.
IV. If this instrument was valid as a will or deed the condition upon which the estate of Inez Inman MacLeod would terminate became impossible, and Mrs. MacLeod became vested with fee simple title. Harris v. McLaran, 30 Miss. 572; Harvey v. Johnson, 111 Miss. 566, 71 So. 824; Irvine v. Newlin, 63 Miss. 192; Love v. Buchannan, 40 Miss. 748; Armstrong v. Thomas, 112 Miss. 272, 72 So. 1006; Ricks v. Merchants National Bank Trust Co. of Vicksburg, 191 Miss. 323, 2 So.2d 344; Gaston v. Mitchell, 197 Miss. 452, 4 So.2d 892.
V. Even if this instrument is valid as a will or deed and even though Mrs. MacLeod did not acquire fee simple title, she did acquire an undivided 1/6th interest devisable to appellant, Miss Carrie V. Harris. 26 C.J.S., Deeds, 110; Darrow, et al. v. Moore, 142 So. 447; Armstrong, et al. v. Thomas, et al., 112 Miss. 272, 72 So. 1006; 69 C.J., Wills, Sec. 1551; 26 C.J.S., Deeds, Sec. 133; Hanie v. Grissom, 178 Miss. 108, 172 So. 500; 31 C.J.S., Estates, Sec. 105; Ricks v. National Bank Trust Co. of Vicksburg, 2 So.2d 344; Secs. 657, 831 Code 1942; Alexander v. Richardson, 64 So. 217; West Tennessee Co. v. Townes, 52 F.2d 764; Harris v. McLaran, 30 Miss. 572; Harvey v. Johnson, 71 So. 824; Irvine v. Newlin, 63 Miss. 192; Love v. Buchannan, 40 Miss. 748; Schlater v. Lee, 78 So. 700; Hammett v. Markham, 90 So. 848; State Savings Bank v. Cortwright, 84 So. 136; Magee v. Morehead, 123 So. 881; Williams v. Green, 91 So. 39.
Chas. F. Engle, W.E. Gore, Breed O. Mounger, and Jesse H. Inman, for appellees.
I. The instrument in question was properly admitted in evidence in this cause as being the last will and testament of B.R. Inman duly established and probated. Ates v. Ates, 189 Miss. 226, 196 So. 243; Belt v. Adams, 125 Miss. 487, 87 So. 666; Coulter v. Carter, 200 Miss. 135, 26 So.2d 344; Cox v. Reed, 113 Miss. 488, 74 So. 330, 11 A.L.R. 5; Cunningham v. Davis, 62 Miss. 366; Fatheree v. Lawrence, 33 Miss. 885; Gaston v. Mitchell, 192 Miss. 452, 4 So.2d 892; Greenleaf on Evidence, (16th Ed.) Vol. 1, p. 271, Vol. 2, p. 623; Kelly v. Covington, 119 Miss. 658, 81 So. 485; Knight v. Knight, 133 Miss. 74, 97 So. 481; Martin v. Graham, 114 Miss. 653, 75 So. 447; Mims v. Williams, 192 Miss. 866, 7 So.2d 822; McKinney v. Adams, 95 Miss. 832, 50 So. 474; Peebles v. Rodgers, 50 So.2d 632; Reynolds v. Wilkinson, 119 Miss. 590, 81 So. 278; Simpson v. McGee, 112 Miss. 344, 73 So. 55, 11 A.L.R. 4; Smith v. Buffington, 176 Miss. 889, 170 So. 816; Tapley v. McManus, 175 Miss. 849, 168 So. 51; Thomas v. Byrd, 112 Miss. 692, 73 So. 725; Tucker v. Whitehead, 58 Miss. 762; Tyson v. Utterback, 154 Miss. 381, 122 So. 496; Ward v. Ward, 124 Miss. 696, 87 So. 153.
II. The proceedings administering the estate of B.R. Inman were not res adjudicata to the subsequent probation of his will. Sec. 537, Code 1942; Waldon v. Mahnks, 178 Ga. 825, 174 S.E. 538, 95 A.L.R. 1101.
III. Appellant, Carrie V. Harris, did not acquire title to lands in question by adverse possession. A.W. Stephens Lbr. Co. v. Hughes, 38 So. 769; Angline v. Broadnax, 97 Miss. 514, 52 So. 865; Bentley v. Callaghan, 79 Miss. 302, 30 So. 709; 69 C.J., Sec. 2162, p. 969; 2 C.J.S. p. 545, Sec. 31; Griffith's Chancery Practice, 2nd Ed., p. 741, Sec. 674; Hoskins v. Ames, 78 Miss. 986, 29 So. 828; Jonas v. Flanniken, 69 Miss. 577, 11 So. 310; Lybrook v. Hall, 73 Miss. 509, 19 So. 348; Sec. 839, Code 1942; Nevitt v. Gillespie, 1 How. (2 Miss.) 108, 26 Am. Dec. 696; Thomasson v. Kinard, 153 Miss. 398, 121 So. 109; West v. West, 131 Miss. 880, 95 So. 739, 20 A.L.R. 226.
IV. The class devisees were properly determined as of the date of the death of the survivor of the life tenants and fulfillment of the contingency. Sec. 837 Code 1942; Patterson v. Patterson, 150 Miss. 170, 116 So. 734; Rose v. Rose, 126 Miss. 114, 88 So. 513.
V. The estate of the remaindermen being contingent and the remaindermen being of a class the members of which could not be determined until the fulfillment of the contingency no interest vested prior to such fulfillment which could be transmitted by deed or will. 33 Am. Jur. p. 618, Sec. 152; Cross v. O'Cavanaugh, 198 Miss. 137, 21 So.2d 473; 69 C.J., Wills, Sec. 1329, p. 306, Sec. 2304, p. 1070; Gordon v. Gordon, 198 So. 287.
This controversy involves the determination of whether a particular instrument is a deed or will, and of its effect if valid as either. On October 28, 1889, B.R. Inman executed an instrument, the original of which has been lost, but it was recorded on the same day in the land deed records of Wilkinson County, as follows:
"In consideration of natural love and affection which I bear my wife, L.A. Inman, and my daughter Inez Inman, I give, grant and convey to my said wife and daughter, as joint tenants, with the right of survivorship, to take effect at my death and not sooner, the following described land, to-wit: * * * (here follows a description of property) * * *. But if both of said Grantees shall die without heirs, descendants of mine, living at the death of the last of said Grantees, then the remainder of said estate after such death of the survivor of said grantee, shall go to my lawful heirs in fee simple.
"Witness by hand this 28th day of October, A.D. 1889.
"Witness B.R. Inman W.K. Cooper W.G. Huff
"State of Mississippi | "Wilkinson County |
Personally appeared before me the undersigned clerk of the Chancery Court in and for said County, the within named B.R. Inman, who acknowledged that he signed and delivered the foregoing instrument on the day and year therein mentioned.
"Given under my hand and seal of said court this 20th day of October 1889.
"R.W.P. Huff, Clerk
"Filed for record by L.A. Inman, October 28th, 1889 at 11 o'clock A.M.
"R.W.P. Huff, Clerk."
L.A. Inman, one of the joint grantees in that instrument and the second wife of B.R. Inman, died in 1892. B.R. Inman died in 1899. At the time of his death his surviving children were Inez Inman, his daughter by his second wife, and five children by his first wife, namely, R.M. Inman, Lilla Inman White, Susie Inman Stewart, W.L. Inman and B.W. Inman.
Immediately after the death of B.R. Inman in 1899, Inez Inman, later Inez Inman MacLeod, went into possession of the property described in the above instrument, dated October 28, 1889, and remained in possession of it until her death on August 3, 1948. In April, 1899, upon petition of Inez Inman, a minor twenty years of age, by her aunt and next friend, Miss Carrie V. Harris, an appellant here, the chancery clerk of Wilkinson County appointed an intestate administrator of the estate of B.R. Inman, the estate was administered, was insolvent, and in 1900, the chancellor discharged the administrator. All of the other children of B.R. Inman died many years prior to the death in 1948 of Inez Inman MacLeod, who left no surviving children.
Shortly after the death of Inez in 1948, Jesse Hunter Inman, a grandson of B.R. Inman, filed a petition in chancery court in common form requesting that the above quoted instrument be admitted to probate as the last will and testament of B.R. Inman. On August 21, 1948, the chancery court executed a decree admitting the will to probate as that of B.R. Inman. In November 1948, five grandchildren and three great grandchildren of B.R. Inman filed the pesent bill of complaint in the Chancery Court of Wilkinson County against Lee I. White, a maternal grandson of B.R. Inman, and sole heir of his mother, and also the sole devisee of his aunt, Susie Inman Stewart, a daughter of B.R. Inman, and three great grandsons of B.R. Inman. The bill charged that B.R. Inman left a last will and testament, the above quoted instrument, which had been duly admitted to probate, that under that instrument he left the described property to Inez for her life, and that at her death the lands descended to the lawful heirs of B.R. Inman living at the time of the death of Inez in 1948. Listing thirteen parties as grandchildren and great grandchildren of B.R. Inman, and charging that these parties took interests under the above instrument per capita, individually, and not per stirpes as a class, the bill asked that the court adjudicate that the thirteen stated grandchildren and great grandchildren of B.R. Inman were each entitled to an undivided 1/13th interest in the land as tenants in common.
Defendants and appellants Lee I. White and R.I. Lessley (Lessley intervened as a defendant) pleaded that the instrument was a valid deed; that the lawful heirs of B.R. Inman must be determined as of the date of his death; that Inez did not take under the ulterior limitation to the lawful heirs of B.R. Inman because by that phrase B.R. Inman meant heirs other than Inez Inman; that White was the owner of a one-fifth interest as the sole heir of his mother, Lilla Inman, and another one-fifth interest as the sole devisee of his Aunt Susie, also a daughter of B.R. Inman; that Lessley was the owner of a one-fifth interest as the sole devisee of W.L. Inman, son of B.R. Inman. The three great grandsons made defendants admitted the averment of the bill.
Appellant Carrie V. Harris was admitted as a party defendant, and by answer and cross-bill averred that she was the sole devisee of Inez Inman MacLeod; that the instrument was invalid as either a will or deed and that B.R. Inman died intestate, which is now res judicata; that B.R. Inman died intestate owning the lands in question, which descended to his six children in equal shares, and that Inez acquired the entire fee title to the land by adverse possession against her co-tenants; that Inez fulfilled the conditions of the instrument, if valid, by having heirs who are descendants of B.R. Inman living at her death; that if the instrument is valid as a deed or will, the lawful heirs are determined as of the date of testator's death, and Inez received an undivided one-sixth interest, which she devised to appellant Harris.
The foregoing is a brief summary of the major contentions of the parties. There was a hearing before the chancery court with witnesses testifying concerning whether Inez had possessed the land adversely to the other heirs. The chancery court adopted in full the theory of complainants' bill. It held that the instrument was the duly probated will of B.R. Inman; that Inez received a life estate with remainder to the lawful heirs of B.R. Inman living at the date of the death of Inez in 1948, being thirteen grandchildren and great grandchildren who survived the life tenant; that appellant Lee I. White took a one-thirteenth interest, and that appellant Lessley took no interest, because he was the devisee of W.L. Inman who died in 1927 before the death of the life tenant, and having died before her, W.L. Inman had no estate to transmit by devise; that Harris received no interest in the land as devisee of Inez, and that Inez obtained no estate by adverse possession. From that decree White, Lessley, and Harris appeal. White claims a two-fifths and Lessley claims a one-fifth interest in the property, excluding Inez as one of the "lawful heirs" of the testator on his death. Harris claims at least a one-sixth interest as the devisee of Inez, and also the entire estate which allegedly was acquired by Inez by adverse possession.
(Hn 1) We think that the instrument dated October 28, 1889, must be considered as testamentary in character and as a will rather than a deed. The controlling question is whether the maker intended to convey any interest before his death, or whether he intended that all of the interest should vest and take effect after his death. B.R. Inman expressly said that the instrument was "to take effect at my death and not sooner." Such a provision, which is stronger than that in Gaston v. Mitchell, 1942, 192 Miss. 452, 4 So.2d 892, 6 So.2d 318, has been held repeatedly to be testamentary and inoperative to vest any present interest. In Peebles v. Rodgers, Miss., 1951, 50 So.2d 632, a somewhat similar clause was construed in the same manner. The distinction there made of Watts v. Watts, 1945, 198 Miss. 246, 22 So.2d 625, is also applicable to the present case. The instrument was witnessed by two witnesses, as well as being acknowledged before a notary public. This adequately meets the statutory requirements as to form.
It is further contended that the appellees are now estopped to claim that the instrument is a will, because the predecessors in title of appellees were served with process prior to approval of the final account in the intestate administration of the estate of B.R. Inman in 1899. Closely related is the argument that in the intestate administration the court adjudicated that B.R. Inman died intestate, and that determination is res judicata on the appellees. The petition for letters of administration was signed by appellant Carrie Harris, next friend of Inez Inman, then a minor. It averred that B.R. Inman, "as far as petitioner is informed and believes", left no will and died possessed of certain personal property only, "except an interest in rents of land of which he was tenant for life, and said Inez remainder in fee * * *." The chancery clerk's order granting letters found that B.R. Inman left no will. The estate was insolvent prior to the final decree. Process was served on all of the children of deceased, except Inez who was a party to the petition, directing them to show cause if any why the final account of the administrator should not be approved. The children filed no pleadings in the case. The chancellor by final decree found that "all the property of deceased has been exhausted in the payment of debts * * * and that there is nothing in hand to pay to general creditors, or heirs of deceased," and discharged the administrator.
(Hn 2) The general rule is well established that a grant of intestate administration is not a conclusive adjudication of intestacy. 21 Am. Jur., p. 456; Annotation 95 A.L.R. 1107, 1110. Code of 1942, Sec. 537, provides: "If a will shall be found and probated, and letters testamentary be granted thereon, the same shall be a revocation of the administration; but acts lawfully done by the administrator without actual notice of such revocation, shall be valid and binding." This statute impliedly recognizes that a grant of intestate administration is not a bar to a subsequent probate of a will.
However, we think that the will was "found and probated" within the terms of this statute. No attempt has been made to wrongfully conceal it, as in Re Stoball's Will, Miss. 1951, 50 So.2d 635. (Hn 3) As appears from the petition for letters of administration, the instrument was considered to be a deed. Nor did the court in 1899 have submitted to it or consider the effect of the instrument in question. For these reasons the intestate administration is not res judicata on the issue of whether B.R. Inman died leaving a will. And for the same reasons, the parties are not estopped to assert that the present instrument is a will.
It is also argued that the will was not probated in compliance with the statutes, because its due execution was not proved as required by Code Sec. 498. The separate probate proceeding of 1948 was in common form, upon petition of Jesse Hunter Inman, and there were no parties defendant. The decree admitting the will to probate found that B.R. Inman had executed the instrument, witnessed by two competent witnesses and acknowledged before the Chancery Clerk of Wilkinson County, "as appears from the allegations in said petition, which are sworn to, and which petition is taken and accepted and considered by the court as affidavits of the proof of the execution of said instrument * * *." The court then adjudicated that it was the will of B.R. Inman and admitted it to probate. The final decree in the present suit contained a somewhat similar finding by the court, and also that the instrument had "been offered for probate as an ancient document which was executed October 28, 1889, placed of record the same day, and has remained of record ever since * * *." It further found that the witnesses and the chancery clerk who took the acknowledgment "have been dead for a long period of time and that the original of said document has been lost or mislaid and could not be found after diligent search * * *."
We think that the will was validly probated in common form. The appellants ask that the probate be declared void for a lack of sufficient evidence. (Hn 4) But where subscribing witnesses are not available, secondary evidence may be used to establish a will. Ward v. Ward, 1920, 124 Miss. 697, 87 So. 153; Tyson v. Utterback, 1929, 154 Miss. 381, 122 So. 496, 63 A.L.R. 1188. The petition for probate alleged that all of the witnesses and the notary public were dead, and the court so found. The instrument was executed in 1889 and placed of record on the date of its execution, and had remained in the public records for 59 years prior to probate. It was recorded as an instrument relating to land. It should also be noted that the instrument was acknowledged before the Chancery Clerk of Wilkinson County, a public officer. His certificate as a notary public contains both an acknowledgment as to its execution and as to its recordation. (Hn 5) The certificates of a notary public and also that of a clerk of the chancery court carry a presumption of correctness in the absence of clear and convincing evidence to the contrary. Mallory v. Walton, 1919, 119 Miss. 396, 81 So. 113.
Moreover, the evidential exception as to ancient wills is applicable. 57 Am. Jur., Wills, Sec. 921, defines it as follows: "The exception to the rule that documents must be authenticated by the testimony of subscribing witnesses or otherwise, which is recognized in the case of writings which are thirty years or more old, applies to wills, so that (Hn 6) it is not necessary to call the attesting witnesses to prove a will which is more than thirty years old reckoned from the death of the testator; even though such witnesses are living, at least if possession has been held under the will for thirty years. Although it is sometimes stated broadly that an ancient will proves itself, it should be observed that the exception of ancient documents from the rule which requires proof of their authenticity is subject to conditions the fulfilment of which dispels suspicion as to the trustworthiness of the instrument." See also Nixon v. Porter, 1858, 34 Miss. 697; 6 Miss. Digest, Evidence.
(Hn 7) Appellant Harris argues that if the instrument is valid as a will, Inez, her predecessor in title, was a life tenant, that Inez's entire possession from 1899 to 1948 was hostile and adverse to the title of the remaindermen, and that she acquired title by adverse possession against them as to the entire estate, which she in turn devised to Harris. With the possible exception of sales of timber, upon which there was conflicting evidence as to whether such sales were permissive, the possession of Inez was consistent with that of a life tenant, or the holder of a determinable fee. The chancellor found against appellant on this point. That finding is amply supported by the record. The burden of proof was upon Harris to establish the unequivocal ouster required of her as against her remaindermen or the owners of the executory interest, and she failed to meet this burden. Thomasson v. Kinard, 1929, 153 Miss. 398, 121 So. 109.
What is the proper interpretation of the limitation upon the estate of Inez Inman MacLeod? (Hn 8) The first problem in this major issue is the meaning of the requirement that the grantee Inez "shall die without heirs, descendants of mine, living at the death of the last of said grantees * * *." We think that this phrase refers to Inez dying without living children of her own. The dominant purpose of testator was to keep his property in his own family and this would be the only construction which would fully effectuate that purpose. Hence the condition that if the two grantees should die without heirs, the property was to go to his "lawful heirs". To describe this requirement further, appellant added the phrase "descendants of mine". In the popular sense, the word "descendants" is often used as meaning the issue from a living person. 26 C.J.S. Descend-Descendant, p. 984. It sometimes has been held to be synonomous with the word "children". Schmaunz v. Goss, 1882, 132 Mass. 141. Moreover, the word "descendants" modifies the word "heirs". And in the context here, as in Thompson v. Green, 1927, 145 Miss. 365, 110 So. 788, we think the testator intended that entire phrase to mean "children". See Boxley v. Jackson, 1941, 191 Miss. 134, 1 So.2d 160; Middlesex Banking Co. v. Field, 1904, 84 Miss. 646, 660, 37 So. 139; Dunlap v. Fant, 1896, 74 Miss. 197, 20 So. 874. Testator did not intend to use the words "heirs, descendants of mine" in a technical sense, but in the popular sense of children. Inez died without any children surviving her.
(Hn 9) With reference to the second question under this issue, we think that the chancery court erred in holding that the "lawful heirs" of B.R. Inman under this will were to be determined as of the date of the death of Inez. Code Sec. 837 has no application here. It does not determine the time at which the "lawful heirs" of B.R. Inman are ascertained for the purpose of taking under this executory estate. It applies to the situation at common law where there would be construed to exist an indefinite failure of issue, and thus a void fee tail estate. The statute would make the limitation over take effect at the person's death without issue at that time. Chief Justice Whitfield discussed this statute in a definitive manner in Middlesex Banking Co. v. Field, 1904, 84 Miss. 646, 660, 37 So. 139, 144, and there said: "American courts should favor executory devises to carry out the intent. `Heirs' or `issue' may be so used as to mean `children,' in which cases the statute does not apply, is unnecessary, and a definite failure is intended". See also 2 Simes, Law of Future Interests (1936), Sec. 342. The phrase "living at the death of the last of said grantees," modifying "heirs, descendants of mine", was apparently intended as a compliance with the statute. The same phrase was not used after the phrase "lawful heirs in fee simple", which would indicate an intent to exclude the date referred to in the phrase used from applying to "lawful heirs in fee simple". Moreover, a distinction must be made between the time when the class vests and the time when it closes or is determined. The latter is the issue here.
There is a division of the courts upon this issue of the time as to which words of survivorship relate. Annotation 114 A.L.R. 4 (1938); 33 Am. Jur. 576-584; 2 Simes, Law of Future Interests (1936), Sec. 349. The alternatives of time of testator's death or time of determination of the intervening estate are presumptive rules of construction rather than abitrary devices. The intent of the testator controls. Both his purpose and the view adopted in Mississippi, that words of survivorship presumptively relate to the time of testator's death, support the application of that result to the present case. There is no evidence to the contrary.
In Alexander v. Richardson, 1913, 106 Miss. 517, 64 So. 217, the deed provided as follows: "And I do by these presents give and bequeath unto my daughter, Eliza Jane Gray, for and during her natural life, and to her children, if any, and in default of child, or children, then to my lawful heirs forever. (This gift to take effect at my death.)"
Eliza Gray died without children, so the court held: "The ascertainment of who were the heirs of the donor must be referred to the time of his death, and not to the time of the death of the life tenant. No contrary intention appears in this case. When their father died the three sons took, as his heirs, an interest in his estate. This was subject to be defeated by the death of Mrs. Baker, the life tenant, leaving issue. This did not happen. The estate which they received upon the death of their father was never defeated or changed. Appellants were not heirs of the donor, Amos Alexander, when he died. Their fathers, the donor's heirs, were heirs."
See also Baker v. Richardson, 1911, 96 Miss. 394, 50 So. 447; Sims v. Conger, 1860, 39 Miss. 231; Harris v. McLaran, 1855, 30 Miss. 533; Schlater v. Lee, 1918, 117 Miss. 701, 78 So. 700. In Magee v. Morehead, 154 Miss. 828, 123 So. 881, the court again followed Alexander v. Richardson and said: "That decision has now become a rule of property, and not being mischievous in its operation or effect, we cannot overrule it."
The "lawful heirs" who are to take under the executory limitation in the will refers to the children of testator living at the time of his death. The same phrase was construed in this manner in Alexander v. Richardson, supra. To the same effect is Russell v. Woodson, 1927, 146 Miss. 748, 111 So. 833. See also Harkleroad v. Bass, 1905, 84 Miss. 483, 36 So. 537; Dunlap v. Fant, 1896, 74 Miss. 197, 20 So. 874. For these reasons and under this construction, which we think represents the testator's intent and is in compliance with the cases, testator devised to Inez Inman an estate in fee simple defeasible subject to an executory limitation in favor of the "lawful heirs" or children of testator living at the time of his death, per stirpes. Vol. I, A.L.I., Restatement of Property, Sec. 16, ps. 117-120. Since testator at the effective date of the instrument had no further interest in the property, the interest obtained by his children, "who are persons other than the conveyor or his successor in interest" in this sense, seems to be an executory limitation. Ibid., Sec. 25. However, whether the interest obtained by the lawful heirs of testator living at the time of his death is designated an executory limitation or a contingent remainder, 33 Am. Jur. 529, et seq., the effect here is the same. All of the children of B.R. Inman were living at the time of his death, and are the takers under his will, per stirpes.
Nor does this exclude Inez Inman MacLeod as one of the owners of this executory interest. It is argued that the fact that she was a life tenant and a holder of a prior estate, on the determination of which the executory interest vested, prevented her from also inheriting a share of it, and that the testator by using the phrase "lawful heirs" meant heirs other than Inez. But (Hn 10) the fact that the holder of the prior estate is a member of the class to which the executory interest is given does not exclude her from an interest in the executory limitation. It is said that "a clear and unambiguous indication of an intention to exclude him must be shown." 33 Am. Jur. 601; Annotations, 13 A.L.R. 615, 20 A.L.R. 357. The circumstance that the first taker is one of the class to whom the limitation over is made should be considered in determining whether testator has impliedly excluded such first taker from participation in the gift over, but it does not of itself prevent the first taker from so participating. 13 A.L.R. 615, 620. Harris v. McLaran, 1855, 30 Miss. 533; Schlater v. Lee, 1918, 117 Miss. 701, 78 So. 700. We think that by the phrase "lawful heirs" testator meant all of his children living at the time of his death, per stirpes. In the absence of a contrary intent in the will (and none exists here) a per stirpes construction of a gift to "lawful heirs" is to be preferred. A "normal testator, particularly if the issue of a near relative or himself is involved, would prefer a per stirpes rather than a per capita construction. He would prefer grandchildren to take what their parent would have taken, if living." Simes, Law of Future Interests (1936), Sec. 427. This is a fortiori true where the term "lawful heirs" connotes a distribution according to the descent and distribution statute, Code Sec. 468. Simes, ibid., Sec. 432.
(Hn 11) The final question requiring consideration is whether the interest which was received by the six children of B.R. Inman living at his death was alienable or transferrable by deed, will, and descent and distribution. The final decree erroneously held that it was not. Code Sec. 831 recognizes the right to create and convey such executory limitations. Alexander v. Richardson, supra, is decisive on the question of whether that interest is alienable or transferrable by deed, will or intestate succession. There the Court said: "* * * it appears to us that the three sons of the donor, upon the death of their father, owned right, title, and interest in the land which they could transmit by deed during the lifetime of the life tenant, and that this is so whether we term them reversioners or remaindermen. They had more than a bare possibility; they had also an interest. At the very least they had a possibility coupled with an interest which, under the law, may be transferred to another. Even though it was uncertain whether, during the life estate of Mrs. Baker, their interest would be divested by her death leaving children or child, still it was capable of sale and transfer by them."
In accord is Ricks v. Riddell, 1946, 200 Miss. 122, 26 So.2d 782. See also Ricks v. Merchants National Bank Trust Co. of Vicksburg, 1941, 191 Miss. 323, 2 So.2d 344. The holding in Alexander v. Richardson seems to represent the almost universal view in other states. 33 Am. Jur. 614; Simes, Law of Future Interest (1936), Ch. 43, 44, 45. Hence the executory interest obtained by the children of B.R. Inman living at the time of his death was transferrable by devise, deed, and descent and distribution.
Reversed and decree rendered here in accordance with this opinion.
The above opinion is adopted as the opinion of the court, and for the reasons therein indicated, the judgment of the court below is reversed and decree rendered here in accordance with this opinion.