Mr Justice McKINLEY.
In this case I differ in opinion with the majority of the court, not only on the construction of the will, but upon a question of much greater importance, and that is, whether the construction given to this will by the Supreme Court of Mississippi is not binding on this court? I will proceed to the examination of these questions in the order in which I have stated them; and to bring into our view all the provisions of the will, which dispose of the real estate of the testator, I will state them in the order in which they stand in the will, unconnected with other provisions not necessary to aid in construing those relating to the real estate.
After the introductory part of the will, and providing for his funeral, the testator proceeds to dispose of his estate thus:
'Secondly, I will and bequeath to my beloved wife, Elizabeth Vick, one equal share of all my personal estate, as is to be divided between her and all my children, as her own right, and at her own disposal during her natural life; and also for the term of her life on earth, the tract of land at the Open Woods, on which I now reside, 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.
'Thirdly, I will and dispose to each of my daughters, one equal proportion with my sons and wife, of all my personal estate, as they come of age or marry; 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 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 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 part of his portion of my estate.
'Fourthly, It is, however, furthermore my wish that the aforesaid Elizabeth should keep together the whole of my property, both real and personal, reserving the provisions before made for the raising, educating, and benefit of the before-mentioned children. 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.'
An inquiry which lies at the threshold of this investigation, is, what was the meaning and intention of the testator in reserving the two hundred acres of land, 'to be laid off in town lots?'
Did he intend this tract, of two hundred acres, should not pass by his will, under the general description of 'all my lands?' Or did he mean simply that it should be reserved from the use of his wife, in the event she selected the river tracts in preference to the Open Woods tract? Or did he intend, as the majority of the court have decided, that it should be reserved to be sold by his executors, for the purposes of paying his just debts and other engagements, 'and' to increase the legacies of his daughters? To the last construction there is a very material objection. The power of the executors to sell the lots laid off, and to be laid off, on the two hundred acres, is not absolute, but contingent. The testator did not direct that any of his property, real or personal, should be sold for the purpose of paying his debts, or for any other purpose. But his meaning and intention, as manifested by the language employed, is, that if, in the administration of his estate, it should become necessary to sell any portion of it for the payment of his debts or other engagements, he wished his executors to remember that the town lots then laid off, and thereafter to be laid off, should be sold 'in preference to any other of (his) property.'
If the debts and other engagements could have been satisfied without a sale of the lots, the executors would have had no power to sell them for any purpose whatever; and the words 'for the use and benefit of all my heirs,' would have been inoperative for the purpose to which they have been applied; and the bounty, which it is supposed by the court a father's heart could not withhold from his daughters, would have been entirely defeated; and in that event, the interpolation of the word 'and,' which has been supplied by the court, could not have conferred on the daughters the lots, nor the proceeds of the sale of them. But conceding the power to sell the lots for the payment of the testator's debts, do the words 'for the use and benefit of all my heirs,' give any authority to the executors to sell the remainder of the lots, after paying the debts, or any right to the heirs to receive the proceeds of such sale?
The court seem to admit, by their reasoning, that these words alone give no right to the heirs to claim the proceeds, nor power to the executors to sell the remainder of the lots, and, therefore, they have supplied the word 'and,' to unite the power granted to sell for the payment of debts, with the words 'for the use and benefit of all my heirs,' which, they say, completes the right to receive the proceeds. If the court have the right to alter the will, and then give construction to it, they make it mean what they please. But I deny the power of the court, in such a case as this, to add the word 'and.' The rule is understood to be this: where there is a supposed mistake or omission, all the court has to do is to see whether it is possible to reconcile that part with the rest, and whether it is perfectly clear, upon the whole scope of the will, that the intention cannot stand with the alleged mistake or omission. Mellish v. Mellish, 4 Ves., 49. It appears to me these words are perfectly consistent with the other parts of the will, and are by no means repugnant to the main intention of the testator, but perfectly consistent therewith.
His intention, as manifested by all the provisions of the will, appears to be, to divide his personal estate equally among his sons and daughters and his wife, and to divide all his real estate, or lands, equally among his sons. That he intended each son to take an equal part of his lands, is proved by the direction to have each portion valued. That half of the Open Woods tract was not equal in value to the two river tracts, excluding the two hundred acres to be laid off into lots, is clearly proved by the will itself; because the testator gives his wife her choice of the Open Woods tract, or the two tracts on the river; and whichever she selects is, at her death, to go to his youngest son, Newit, and the other to be divided between his sons Westley and William; and he further directs that the part which his son Hartwell had received, should be valued, considered his, and as part of his portion of the estate. Here is a clear and unequivocal intention manifested to give to each son an equal portion of his real estate; and it is as clearly manifested that the specific portions given are not equal. To maintain the construction given to the will by the court, the two hundred acres are excluded from the devise of all the testator's lands to his sons. And the question arises, and ought to have been decided, how are these portions to be equalized? If the two hundred acres passed to the sons by the devise, subject to the payment of debts, then a reasonably certain contingent means was afforded for equalizing the portions, by dividing and valuing the lots not sold to pay debts, to make up deficiencies.
This view alone is sufficient to satisfy my mind that all the lands passed to the sons by the general words, 'all of my lands, all of which lands I wish to be appraised, and valued, and divided, when my son Westley arrives at the age of twenty-one years.' Can the words 'for the use and benefit of all my heirs,' which in themselves contain no positive words of grant, control the previous, positive, and unconditional, grant of all his lands to his sons? It appears to me to be impossible to give such controlling influence to such words, upon any of the known and established rules of construction; and especially when they admit of a different interpretation, by which they would stand in perfect harmony with the other provisions of the will.
The accounts settled by the executor, with the Orphans' Court, and which are part of the record exhibited in the bill of complaint, show that between twenty-five thousand and thirty thousand dollars of the debts of the estate were paid by the proceeds of the cotton crops; which proves that a large portion of the personal estate consisted of slaves. Is it not reasonable, therefore, to suppose the testator had in his mind the disadvantages that would result to all his children, if he should leave his slaves liable to be sold for the payment of his debts, when he ordered the lots, which were unproductive, to be sold for that purpose, 'in preference to any other of his property' which was productive? Acting upon this view of his affairs, is it at all surprising that he should have inserted in his will, even by interlining, the words, 'for the use and benefit of all my heirs,' that being the reason which induced him to charge the debts upon the town lots?
But putting out of view all extraneous considerations, can the construction given by the court to this part of the will be sustained upon principle? Executors have no authority to sell real estate, unless the power to sell, and the purpose of the sale, are expressed in the will. Therefore the court cannot infer, from a power expressly granted to sell the estate for one purpose, a power to sell it for another purpose not granted. Hill v. Cook, 1 Ves. & B., 175. In the case under consideration, the only authority given by the will to sell the town lots, was for the payment of debts; and there the power of the executors to sell any portion of the estate terminated. When they had sold as many of the lots as were necessary to pay the debts, the remainder fell into the general devise of all the lands of the testator to his sons; and the purposes of the testator, in relation to his real estate, were accomplished, according to his plain intention, when all the provisions of the will are taken together.
To reserve the remainder of the lots from the general devise, and to give effect to the interlined words, different from their plain meaning, in the connection in which they stand with the other provisions of the will, the court revive the exhausted power of sale, and give capacity to all the heirs to take the proceeds of the sale of the remainder of the lots, by inserting the conjunction 'and' between the power to sell the lots for the payment of debts and the interlined words; thereby changing the meaning of the whole sentence. This certainly is not construing the will; but it is making a will, and giving this portion of the testator's estate to his daughters, which he plainly intended for, and gave to, his sons.
This will was brought in question before the High Court of Errors and Appeals of the state of Mississippi, in the case of Vick and others v. The Mayor and Aldermen of Vicksburg, 1 How. (Miss.), 442. The question before that court was, whether the land in controversy had been dedicated by Newit Vick, in his lifetime, to public purposes, or passed to, and was vested in his devisees by his will; and it is a part of the same land in controversy in the case before this court; the court of Mississippi having concurrent jurisdiction of the subject-matter with this court, decided, that the whole of the real estate was devised to the sons of Newit Vick, deceased; and that his daughters were entitled to no part of the lots, nor any part of the proceeds of the sale of them. According to the Constitution and laws of the United States and previous decisions of this court, I think this court was bound to follow the decision of that court upon the construction of the will.
The 2d section of the 3d article of the Constitution of the United States declares, 'The judicial power shall extend to all cases in law and equity arising under this Constitution, the laws of the United States, and treaties made or which shall be made under their authority; to all cases affecting ambassadors, other public ministers, and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more states, between citizens of different states, between citizens of the same state claiming lands under grants of different states, and between a state or the citizens thereof and foreign states, citizens, or subjects.' In these three latter classes of cases, the jurisdiction of the courts of the United States is concurrent with the state courts. In this case it originated between citizens of different states, and is, therefore, concurrent with the courts of Mississippi. Before the jurisdiction here conferred on the courts of the United States could be exercised, it was necessary their powers and authority should be established and defined by law. And accordingly, by the 34th section of the act of Congress of the 24th of September, 1789, it is enacted, 'That the laws of the several states, except where the Constitution, treaties, or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of the United States, in cases where they apply.' The purposes for which jurisdiction was given to the courts of the United States between citizens of different states in ordinary matters of controversy, between citizens of the same state claiming lands under grants from different states, and between an alien and a citizen of a state, was to give in each of these cases, at the option of the plaintiff, a tribunal, presumed to be free from any accidental state prejudice or partiality, for the trial of the cause.
And when Congress defined the powers of the courts of the United States, they directed, that the laws of the several states should be regarded as the rules of decision in suits at common law, in cases where they apply. And upon these principles, with few, if any exceptions, has this court acted from the commencement of the government down to the present term of this court. That they should continue so to act, is of great importance to the peace and harmony of the people of the United States. If the state judicial tribunals establish a rule, governing titles to real estate, whether it arise under statute, deed, or will, and this court establishes another and a different rule, which of these two rules shall prevail? They do not operate like two equal powers in physics, one neutralizing the other; but they produce a contest for success, a struggle for victory; and in such a contest it may easily be foreseen which will prevail.
The state courts have unlimited jurisdiction over all the persons, and property, real and personal, within the limits of the state. And as often as the courts of the United States have it in their power, by their judgments, under their limited jurisdiction, to turn out of the possession of real estate those who have been put into it by the judgment of the highest court of appellate jurisdiction of the state, so often that possession will be restored by the same judicial state power. To avert such a contest, and in obedience to the act of Congress before referred to, this court have laid it down, in many cases, as a sound and necessary rule, that they should follow the state decisions establishing rules and regulating titles to real estate. And in the following cases they have applied the rule to the construction of wills, devising real estate. In Jackson v. Chew, 12 Wheat., 162, the principle is fully maintained. In that case the court say, 'The inquiry is very much narrowed by applying the rule which has uniformly governed this court, that where any principle of law, establishing a rule of real property, has been settled in the state courts, the same rule will be applied by this court, that would be established by the state tribunals. This is a principle so obviously just, and so indispensably necessary under our system of government, that it cannot be lost sight of.' The question in that case arose upon the construction of a will devising land in New York. In the case of Henderson and wife v. Griffin, 5 Pet., 154, the court say, 'The opinion of the court in the case of Kennedy v. Marsh was an able one; it was the judicial construction of the will of Mr. Laurens, according to their view of the rules of the common law in that state, as a rule of property, and comes within the principle adopted in Jackson v. Chew, 12 Wheat., 153, 167.' These cases are in strict conformity with the 34th section of the act of the 24th September, 1789, above referred to.
There are many other decisions of this court applicable to this case; some of them have followed a single decision of a state court, where it settled a rule of real property. And at the present term of this court, in the case of Carroll v. Safford, treasurer, &c., it was held, that it was not material whether it had been settled by frequent decisions, or a single case. From these authorities, it is plain, the jurisdiction of this court is not wholly concurrent in this case with the Supreme Court of Mississippi; but in power of judgment it is subordinate to that court, and, therefore, the construction given by that court to the will ought to have been the rule of construction for this court.
Mr. Chief Justice TANEY concurred in the opinion of Mr. Justice McKINLEY. [1]
Notes edit
- ↑ On the trial of this case, Mr. Justice STORY was absent; four of the judges, therefore, ruled the decision.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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