Darrow v. Moore

Counsel

Holmes Bowdre, of Hernando, for appellants. When the sole question is the sense in which certain words or phrases are used and not their legal effect, they will be construed according to the lex domicilii in the case of real as well as personal property. 5 R.C.L., 1019, sec. 106; Adams v. Farley, 18 So. 390; Crusoe v. Butler, 36 Miss. 150 ; Ball v. Pheland et al., 94 Miss. 339 ; Rose v. Rambo, 120 Miss. 305 ; Ford v. Ford, 80 Mich. 42 , 44 N.W. 1057; Minor on Conflict of Law, 338. Words of supvivorship in a will, unless there is a manifest intent to the contrary, always relates to the death of the testator, and that, in the absence of a contrary intent, a will always speaks as from the date of the testator's death. Smith v. Smith, 139 Ala. 406 ; Hoover v. Hoover, 116 Ind. 498 ; Smith v. Smith, 157 Ala. 79 , 88; Haigler v. Haigler, 202 Ala. 480 , 80 So. 864 ; Fowlkes v. Clay,. If there is no previous interest given, the period of division is the death of the testator and survivors at his death take the whole; but if a previous life estate be given, then the period of division is the death of the life tenant, and survivors at such death take the whole. Burleson v. Mays, 189 Ala. 107 , 119, 66 So. 36, 40; Reynolds v. Reynolds, 95 So. 180 ; Fowlkes v. Clay, 88 So. 651 . The Mississippi Courts are in full accord with the rule followed in Alabama, that words of survivorship in a will, unless there is manifest intent to the contrary, always relate to the death of the testator, but if a previous interest of life estate is given, they relate to the death of the life tenant. Nations v. Colonial Mortgage Company, 115 Miss. 741 . The great weight of authority in the United States is that the time of defeasance under a devise for life with remainder in fee and to third parties if the remaindermen die childless or without issue, is the termination of the life estate, and if the remainderman survives the life tenant, he takes the fee. Bradshaw v. Butler, 110 S.W. 420; Rener v. Renfro, 104 S.W. 951; Duzan v. Chappel, 84 N.E. 775; Satterfield v. Tate, 64 S.E. 60; Garrard v. Kendall, 121 S.W. 996; Reuling Extr. v. Rueling, 126 S.W. 151; Jewell v. White, 179 S.W. 212; White v. White's Guardian, 182 S.W. 942; In re Farmers Loan Trust Co., 82 N.E. 181 ; Hohnboch v. Hohnboch, 139 N.W. 731; Baker v. Thomas, 189 S.W. 215; Harrington v. Cooper, 189 S.W. 667; Welch v. Crowe, 155 N.E. 859 ; Michael v. Minchin, 101 A. 283; Fulwiler v. McClun, 120 N.E. 458; In re Kelsey's Estate, 189 N.Y.S. 60; Starnes v. Sanders, 108 S.E. 37; Bonner v. Wedekind, 237 S.W. 394; Mahoney v. Mahoney, 120 A. 342 ; In re Turner's Will, 200 N.Y.S. 476, 206 App. Div. 294 ; Ensimer v. Grimes, 275 S.W. 19; Doris v. Scharf, 133 A. 197; Ewart v. Dolby, 5 S.W. 428; Boynton v. Boynton, 165 N.E. 489 ; Rankin v. Rankin, 12 S.W. 319; Parpoint v. Parpoint Admr., 15 S.W. 513; Page on Wills, secs. 1140, 1142. Courts do not look with favor on indefinite failure of issue and are inclined to limit the devise over in case the remainderman die without issue to a period before distribution and usually the gift over in case of death during the life of the testator, but where the gift is the remainder, then the time of death refers to death occurring before the termination of the particular estate. Schouler on Wills, sec. 1053. It has been a settled rule in this state that where an estate is devised to one for life with remainder to another with the further provision that if the remainderman should die without children or issue, then to a third person, the words dying without children or issue have reference to the death of the remainderman before the termination of the life estate or, if the remainderman survives the life tenant, his estate becomes absolute. Eakins v. Eakins, 191 Ky. 61 ; Freund v. Freund, 110 A. 449; Boothe v. Eberly, 124 Md. 22 . If there is a particular estate preceding the gift over, the latter will take effect if the contingency happens at any time during the existence of the particular estate. In such case the death without children surviving refers to death before the death of the life tenant, unless the wills shows that the testator intended to refer to a later date. Risser v. Ayers, 306 Ill. 293 , 137 N.E. 851; Church v. Ball, 236 Penn. 605, 84 A. 1099; Fitzgibbon Estate, 272 Penn. 345, 116 A. 289. This identical will of Jacob K. Swoope has been construed by the Supreme Court of Alabama. The court held in this case that the words "die without issue" as used in the will of Jacob K. Swoope, refer to the death of his daughter, Tempe, before the death of the testator, and as she survived the testator, she took the lands devised to her in fee. Darrow v. City of Florence, 91 So. 606 . A gift to a class is a gift of an aggregate sum to a body of persons uncertain in number at the time of the gift, to be ascertained at a future time, who are all to take in equal or some other definite proportion, the share of each being dependent for its amount upon the ultimate number. Under a bequest to a class, subject to increase or diminution by reason of future births, or death, the entire interest vests in such persons only as fall within the class at the date of distribution. 28 R.C.L., page 260, sec. 233. The general rule therefore is that a gift to a number of persons not named, but answering the general description, is a gift to a class. 28 R.C.L., page 261; Branton v. Buckley, 99 Miss. 122 . It is the general rule that a devise to brothers and sisters includes the half blood as well as the whole blood. 40 Cyc. 1453; 9 Ann. Cases 140; Lusby v. Cobb, 80 Miss. 715 . Descendants are those who have issued from an individual including children, grandchildren, and their children to the remotest degree — issue of any decree. Huston v. Read, 32 N.J. Eq. 591 , 599; Bryan v. Walton, 20 Ga. 480 , 512; Bates v. Gillett, 24 N.E. 611, 612, 132 Ill. 287 ; Van Buren v. Dash, 30 N.Y. 393 , 415; Tompkins v. Verplanck, 42 N.Y.S. 412, 415, 10 App. Div. 572 ; Levering v. Orrick, 54 A. 620 , 622, 97 Md. 139 ; Carter Oil Co. v. Scott, 12 Fed. 780, 783; Minshall v. Berryhill, 205 P. 932 , 83 Okla. 100 ; Twaites v. Waller, 110 N.W. 279, 133 Iowa 84 ; Lich v. Lich, 138 S.W. 558, 158 Mo. App. 400; Rasmusson v. Unknown wife of Hoge, 293 Ill. 101 , 127 N.E. 356; Strout v. Strout, 117 Me. 357 , 104 A. 577; Green v. Hussey, 228 Mass. 537 , 117 N.E. 798 ; Page on Wills (2 Ed.), page 1511, sec. 904; 18 C.J. 792; Caldwell v. Willis, 57 Miss. 575 ; 1 Jarman on Wills (3 Am. Ed.), chap. 9, sec. 2. If the devise is void as to part of the class, it is void as to the whole class. There shall not be, in any case, a distinction between the kindred of the whole and half blood, except that the kindred of the whole blood in equal degree shall be preferred to the kindred of the half blood in the same degree. Sec. 1382, Hemingway Code of 1927. The descendants of the brothers and sisters of the whole blood take in exclusion of the brothers and sisters of the half blood. Scott v. Terry, 37 Miss. 65 . Where there is a good absolute gift and the settlor or testator goes on in an additional clause to modify the gift, and, by modifying it, makes it, in part, too remote, the modification is rejected in toto, and the original gift stands. Lazard v. Hiller, 145 Miss. 454 ; Nicholson v. Fields, 111 Miss. 643 ; Gray on Perpetuities (3 Ed.), sec. 423. That one thought and said she had only a life estate does not estop her or her assigns to assert her title in fee against any one not hurt by anything she did. Boyce v. Moseley, 86 S.E. 771 , 102 S.C. 361 ; Meyer v. Meyer, 106 Miss. 638 . One entitled to a remainder in fee on the termination of a life estate created by a will, who accepted an allotment in partition, was not estopped from claiming the title defined by the will. Trustee of Common School District v. Isaac's Guardian, 115 S.W. 724. Before an estoppel can be raised, there must be certainty to every intent and the facts alleged to constitute it are not to be taken by argument or inference. 16 Cyc. 748; Roach v. Brannon, 57 Miss. 490 ; Turnipseed v. Hudson, 50 Miss. 429 . An admission, in order to constitute an estoppel must relate to a matter of fact, and a person will not be estopped by an admission as to the law, or to admissions as to the legal effect of a contract. 16 Cyc. 756. And if two modes of construction are fairly open, one of which will turn a bequest into an illegal perpetuity, while by following the other it will be valid and operative, the latter mode must be preferred. 28 R.C.L., page 206, sec. 167; Bullard v. Bullard, 132 Miss. 544 . The will will be given that construction, if it may be reasonably done, so as to make it a valid instrument, and this, although the thing that makes it invalid may be the Two Donee Statute, although the purpose of the Statute is to destroy intention, though the intention be ambiguously expressed. Henry v. Henderson, 101 Miss. 751 ; Bratton v. Graham, 146 Miss. 246 . Wilson, Kyser, Armstrong Allen, and Julian Wilson, of Memphis, Tennessee, for appellants. The object of the Two Donee Statute is to defeat intention; therefore, every provision in a will or settlement is to be construed as if the rule did not exist, and then to the provision so construed the rule is to be remorselessly applied. Henry v. Henderson, 103 Miss. 69 ; Lazard v. Hiller, 110 So. 855 . If, however, the language of the will is reasonably susceptible of two different constructions, one of which will defeat and the other sustain the provisions, that construction should be adopted which will sustain and uphold the will in all its parts if it can be done consistently with the established rule of law. Bullard v. Bullard, 132 Miss. 548 . Where a part of a gift violated the rule against perpetuities and a separate part was valid, the valid part will be upheld. Bratton v. Graham, 111 So. 353 . Where there is a limitation over upon the dying of one without children or issue, without more, and an estate is given such one, the words shall be held to import a death in the lifetime of the testator. Katzenberger v. Weaver, 110 Tenn. 620 . Though a matter has once been litigated to a final judgment if it is subsequently relitigated and adjudicated, the last judgment controls and determines the rights of the parties. The second judgment cannot be collaterally impeached by showing the first. In another aspect this principle has been applied in connection with the rule that one who fails to plead or prove a former adjudication waives the benefits of it. Where title is adjudicated in different ways in two actions, the judgment in the later one controls. 2 Freeman on Judgments (5 Ed.), sec. 629, page 1328; Tyrell v. Baldwin, 67 Cal. 1 ; Bank of Montreal v. Griffin's Estate, 190 Ill. App.? 221; Cummens v. Mullins, 183 Ky. 666 ; Estate of McNeil, 155 Cal. 333 , 100 P. 1086 ; Horse Creek Coal Land Co. v. Olderson, 266 Fed. 477. A party is not estopped by a pleading in another suit where it was unsworn to and related to a matter of law. Piggot v. Piggot, 112 Miss. 877 ; Meyer v. Blakmore, 54 Miss. 570 ; Co-operative Life Ass'n. v. Leflore, 53 Miss. 1 ; Carradine v. Carradine, 33 Miss. 688 ; Tate v. Tate, 126 Tenn. 172 , 212; Crump v. Gerock, 40 Miss. 765 . The widow is the first donee of the life estate; Tempe is the second. The brothers and sisters and their descendants are not the heirs of the body of either the widow or Tempe, and, therefore, for the limitation to be good they must all be right heirs of the donor. The whole brothers and sisters were of course right heirs of the donor. If all of the descendants are included and they are not right heirs of the donor, the limitation is void. This provision falls under the condemnation of the Two Donee Statute. The word "descendants" is not only defined to include all descendants alike. Caldwell v. Willis, 57 Miss. 55 . A limitation void as to some of the members comprised in a class is void as to the whole class. Caldwell v. Willis, 57 Miss. 55 . A bequest to one and in case he dies or in the event of his death, without other words of contingency, then over, the contingency is that of death before the testator dies. Sims v. Conger, 39 Miss. 231 . In the absence of all expressions showing a different intention the words of limitation must be taken to refer to the time of the death of the testator. Sims v. Conger, 39 Miss. 231 ; Nations v. C. U.S. Mortgage Company, 115 Miss. 741 , 76 So. 642; 115 Tenn. 747 , 748. The words "without issue of their bodies" would have imported an indefinite failure of issue, and they would have taken at common law only a fee tail by the conveyance, and the effect of the statute, providing that the words "without issue of the body" in clauses like this shall be held and interpreted as a limitation to take effect when such person shall die without issue of the body living at the time of his death, etc., is to prevent the estate conveyed from becoming a fee tail. Middlesex v. Field, 84 Miss. 646 . A limitation on death without issue is held to mean death during the life of the testator where the gift was immediate and at the termination of the life estate if the possession was deferred. Frank v. Frank, 120 Tenn. 576 . This devise is to a class, the members of which must be determined according to the law of the domicile of the testator, and not by the law of Mississippi, although the land devised is situated therein, for the rule is that where the laws of different jurisdictions are involved in the interpretation of a will for the purpose of ascertaining the testator's intention as therein expressed, the words used by him therein, in the absence of circumstances indicating that he had the law of another jurisdiction in mind, must be interpreted in accordance with the law of his domicile. Rambo v. Rose, 120 Miss. 305 ; Adams v. Farley, 18 So. 390. As an original proposition the will would doubtless mean that if Tempe Swope died during her mother's lifetime and before the period of distribution arrived, without issue, then the property went to the brothers and sisters. Reynolds v. Reynolds, 95 So. 181. Another class of cases is, where, by the terms of the will, the gift to the legatee is not immediate, but in remainder, or preceded by a life or other partial interest, with an executory limitation over "in case of the death of the legatee," or like words. In such cases, the words of contingency will be applied to the period when the remainder takes effect in possession, viz., the determination of the preceding interest, and not to the death of the testator. Sims v. Conger, 39 Miss. 231 and 311; Nations v. C. U.S. Mortgage Company, 115 Miss. 748 . Holmes Bowdre, of Hernando, Wilson Kyser and Armstrong Allen, all of Memphis, Tennessee, for appellants. A gift to a number of persons not individually named, but all answering a general description, is a gift to them as a class. Branton v. Buckley, 99 Miss. 116 . It thus appearing that the limitations is void as to some of the persons comprised in the class to which it is made, it results, by a well settled rule, that it is void as to the whole class. The courts will not undertake to separate the interests of those who might take from those who cannot, for the manifest reason that no such attempt could be successful until the period should come when it would be certainly known that no other person could come into existence who would be entitled to take under the will. Caldwell v. Willis, 57 Miss. 555 . And when there is a good absolute gift, and the settlor or testator goes on, in an additional clause, to modify the gift, and, by modifying it, makes it, in part, too remote, the modification is rejected in toto, and the original gift stands. Lazard v. Hiller, 145 Miss. 446 ; Reddoch v. Williams, 129 Miss. 706 ; Bratton v. Graham, 146 Miss. 246 . Julian C. Wilson, of Memphis, Tennessee, for appellants. The expression "my own right heir" or "right heirs" means, according to the law of England, the heir or heirs of the testator at common law. Re Garland, 47 L.J. Ch. 714. It can make no difference if, instead of "my heir" the words used had been, "my right heir" or "my right heirs." Each of these phrases indicates the same person, i.e. the common law heir. Owens v. Gibbons, 1 Ch. 646. A bequest to trustees, to pay the income for life to legatees named, and at their death "to my right heirs" is payable to the heirs at law living at the time of the death of the testator; the phrase "my right heirs" meaning the testator's heirs at common law, and the words having been used properly as words of purchase. 7 Words Phrases, 6225. "Right heirs" is a term formerly used in the creation of estates tail to distinguish the preferred to whom the estate was limited from the heirs in general, to whom upon the failure of the preferred line the remainder over was limited. With the abolition of estates tail the term has fallen into disuse. If no preference was made among the heirs, it would not import any, and therefore it here means the same as the single word "heirs." Brown v. Wadsworth, 61 N.E. 250 , 253. The terms "lawful heirs" "right heirs" and "heirs at law" are synonymous; their signification is fixed by law; and when they are used in deed or will without any superadded words or phrases, indicating a different meaning they are always understood to be used according to their legal acceptation. Harris v. McLaran, 30 Miss. 533 , 572; Peabody v. Cook, 201 Mass. 218 , 87 N.E. 466 , 16 Ann. Cas. 296; Fletcher v. Fletcher, 88 Ind. 418 , 421; 4 Words and Phrases, 388; 6 Words and Phrases, 849; 16 Ann. Cas. 298, 299. The expression "right heirs of his children" means children of his children. So that grandchildren alive at the death of the testator took title to the estate in remainder. Ballentine v. Wood, 9 A. 582. It is the general rule that a bequest or devise to the heir or heirs at law of a testator is to be construed as referring to those who are such at the time of the death of the testator, unless a different intent is plainly manifest by the will. That rule is founded on the natural meaning of the words, speaking in the popular sense as well as in the strictly accurate sense, "heirs" means those persons who inherit the property of a person at the time of his death. State Street Trust Co. v. Sampson, 228 Mass. 411 , 117 N.E. 832 . A remainder limited by a testator to his heirs-at-law was vested and not contingent; those who were alive at the death of the testator took the estate and not those only who survived the tenant for life. McDaniel v. Allen, 64 Miss. 417 , 7 So. 358. Where a testator devised a life estate to his wife and the remainder to his children, and provided that the children of such of his children as should die during the estate of the life tenant should take an equal share in the remainder, then the grandchildren of the testator whose parents died during the estate of the life tenant took as purchasers under the will and not by descent. Dunlap v. Fant, 74 Miss. 566 , 17 So. 824. 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. Alexander v. Richardson, 106 Miss. 517 , 64 So. 217. Unless it clearly appears otherwise from the plain language of the will, the class of persons described as testator's "heirs" "heirs at law," "lawful heirs" will be deemed to be those living at the death of the testator and not at some subsequent period. Schlater v. Lee, 117 Miss. 701 , 78 So. 700; McArthur v. Scott, 133 U.S. 340 , 378, 5 Sup. Ct. 625, 28 L.Ed. 1015; Coolidge v. Long, 282 U.S. 582 , 597; Walker v. Durshee, Kenyon, Petitioner, 17 R.I. 149 , 20 A. 294 ; Ann. Cas. 1917A. 859. The "right heirs" of a testator, donor, or grantor are in reality those who would inherit at the date of his death. Magee v. Morehead, 123 So. 881 ; McArthur v. Scott, 113 U.S. 340 , 378, 5 Sup. Ct. 625, 28 L.Ed. 1015; Coolidge v. Long, 282 U.S. 582 , 597; Walker v. Durshee, Kenyon, Petitioner, 17 R.I. 149 , 20 A. 294 ; Ann. Cas. 1917A. 859. Holmes Bowdre, of Hernando, and Julian C. Wilson, of Memphis, Tennessee, for appellants. The weight of modern authority is that "die without issue" without anything further in the will to indicate the intention of the testator and when inserted in order to provide for a gift to another in the event of dying without issue, means death in the lifetime of the testator. The rule, itself, grows out of the principle that the law favors absolute rather than conditional estates. Testator's intention is at best doubtful in such cases; and the law accordingly settles such doubt by construing the will as creating an absolute estate with a substitution of the beneficiary in case the first named beneficiary dies before the testator. Page on Wills, sec. 1140. Death without issue is to be construed, if fairly possible, as meaning death before the period of distribution. Page on Wills, sec. 1140. Even where the express language of will does not fix the time before which the death is to occur in order to defeat the estate as subsequent to his own the context of the will may show that such was the intention. One of the commonest forms by which the context shows such an intention is where the testator creates a particular estate to one and the remainder to another, provided that on the death of such other generally without issue the estate shall go to a third beneficiary. Under such devise the testator contemplates death of the first remainderman subsequent to his own and usually before the termination of the particular estate or at the expiration of the period of time. Page on Wills, sec. 1142. Courts do not look with favor on indefinite failure of issue and are inclined to limit the devise over in case the remainderman die without issue to a period before distribution and usually the gift over in case of death during the life of the testator, but where the gift is the remainder, then the time of death refers to death occurring before the termination of the particular estate. Schouler on Wills, sec. 1053. Where the gift is to take effect in possession immediately upon the testator's decease, words of survivorship are regarded as intended to provide against the death of the objects of the gift in the lifetime of the testator, and prima facie refer to his death. Early English cases extended the rule to cases in which the gift was postponed to a prior life estate, or other particular interest carved out. The later English cases abandoned this position and adopted the rule that whether the gift be immediate or postponed, and whether the property be real or personal, words of survivorship prima facie refer to the period of division. If there is no previous interest given, the period of division is the death of the testator and survivors at his death take the whole, but if a previous life estate be given, then the period of division is the death of the life tenant and survivors at such death take the whole. Burleson v. Mays, 66 So. 36, 40; Smith v. Smith, 139 Ala. 413 , 36 So. 616; Reynolds v. Reynolds, 95 So. 180 . Words of survivorship in a will, unless there is a manifest intent to the contrary, always relate to the death of the testator. Spira v. Frenkel, 97 So. 104 . Charles Strong, of Macon, and Magruder, Walker Magruder, of Starkville, for appellees. At common law the words, "without issue of her body" would have imported a definite failure of issue and Tempe P. Swope would have taken at common law only a fee tail by the will, and the effect of Article 8 of section 2 of chapter 36 of the Code of Mississippi of 1857, that the words "without issue of the body" in clauses like this shall be held and interpreted as a limitation to take effect when such person shall die without issue of the body, living at the time of his death, etc., is to prevent the estate conveyed to Tempe P. Swope from becoming a fee-tail. The limitation to the brothers and sisters, or their descendants, of the testator, Jacob K. Swope, is a conditional limitation over after the death of Tempe P. Swope, without issue of her body. Such conditional limitation does not cut down the estate in fee, it takes effect only at the termination of the prior estate and neither extends the prior estate nor accelerates its termination. Brattle Square Church v. Grant, 3 Gray. 142, 63 Am. Dec. 725; Banking Company v. Field, 84 Miss. 646 -657. Tempe P. Swope took an estate in fee determinable upon the contingency of her dying without issue at the time of her death. Banking Company v. Field, 84 Miss. 646 -657. The determination of the testator's intention, or, in other words, the construction of his will, is controlled by the conditions and circumstances surrounding him and attendant upon the execution thereof, any application of the general rules as to the period of survivorship being denied effect, for the reason that the language of the will demonstrates conclusively that the gift over was to become effective upon the death of the donee in the course of nature. Any other result would have done violence to the testator's manifest purpose. Abrahams v. Abrahams, 122 So. 625 ; Castleberry v. Stringer, 176 Ala. 250 , 50 So. 849; Rutland v. Emanuel, 202 Ala. 269 , 80 So. 107 ; Dickson v. Dickson, 178 Ala. 117 , 59 So. 58; Smith v. Smith, 157 Ala. 79 , 47 So. 290, 25 L.R.A. (N.S.) 1045. The testator's intention if legal must be gathered from the whole will and all of its parts after taking due consideration of the testator's manifest scheme to ascertain its spirit rather than its letter, and, if possible, to make it form one consistent whole and there the general and primary interest prevails over a special or secondary interest. Fowlkes v. Clay, 88 So. 651 . The general rule must be enforced, "unless it appear from the will and the surrounding circumstances" that it was the intention of testatrix that the gift should take effect upon the death of the beneficiary at any time in the course of nature. 40 Cyc. 1499 et seq. The comprehensive and all dominating rule for the construction of wills is that the testator's intention must be ascertained and given effect if legal in the light of all attendant facts and circumstances, to which vital consideration technical rules must be subordinate. Ball v. Phelan, 94 Miss. 293 ; Watson v. Blackford, 50 Miss. 15 ; Chrisman v. Bryant, 108 Miss. 318 ; Henry v. Henderson, 103 Miss. 49 ; Countiss v. King, 115 So. 109 ; Beck v. Booth, 144 Miss. 493 ; Smith v. Smith, 47 So. 220, 25 L.R.A. (N.S.) 1045; Lumpkin v. Lumpkin, 25 L.R.A. (N.S.) 1063. Such circumstances control the construction of his will and fix the period of survivorship in contravention of the general rule. King v. King, 215 Ill. 100 ; Jordan v. Hinkle, 111 Iowa 43 ; Willitts v. Conklin, 33 L.R.A. (N.S.) 321. The word "descendants" does not refer, as used in the will at issue, to the children or offspring of living parents, but only to the children or offspring of dead parents. Section 7365, Alabama Code of 1923, was brought forward to its present position in such Code through six preceding Codes, including the Code of 1857, which was in effect on the 3rd day of July, 1871. Articles 110, 113 of section XIV, Revised Code of Mississippi, 1857. The term "descendants" according to its lexicographical and legal meaning, designates the issue of a deceased person and does not describe the children of a parent who is still living. 18 Corpus Juris, page 792; 3 Words and Phrases, page 2016; Shannon v. Riley, 121 So. 808 . The use of the word "descendants" in a will, of course, includes any issue of a dead parent next in line of descent, children, grandchildren, or great-grandchildren. Ridley v. McPherson, 110 Tenn. 402 , 43 S.W. 772; Nichols v. Guthrie, 199 Tenn. 535 , 73 S.W. 107; Lea v. Lea, 145 Tenn. 693 ; Dunlap v. Fant, 74 Miss. 197 ; Harvey v. Johnson, 111 Miss. 566 ; Butler v. Chase, 150 A. 121 ; In re Stevens Estate, 222 N.Y.S. 714; In re Beach's Estate, 151 A. 654 . Where a will conveyed to testator's wife a life estate, and "at the decease of my said wife my estate shall be equally divided among my surviving children, or their heirs share and share alike, the testator meant that the distribution was to be among those children who survived and the "heirs" of any child who might have died, per stirpes. Shannon v. Shannon, 139 A. 173 . A devise to children for life, and "upon the death of all my said children then to their respective heirs forever," indicates a clear intention on the part of the testator that the descendants of his children should take substitutionally. This necessarily means that the distribution be made per stirpes. Sanford v. Stagg, 150 A. 187 . If it is doubtful whether testator intended the distribution among his grandchildren to be per stirpes or per capita, the court should adopt a construction in favor of the former not only as being most probably in accordance with his intention, but also as being in accordance with the policy of our law. Stoutenburg v. Moore, 37 N.J. Eq. 63 ; Bartine v. Davis, 46 A. 577, 60 N.J.E. 202; 2 Jarman on Wills, sec. 195. Only those took as issue who would have been entitled to take as heirs of the body under the statute of distribution. Issues of the body of Lucy A. Keller living at her death means heirs of her body living at the time of her death. Dixon v. Pendleton, 72 S.E. 501 ; Rembert v. Catoes, 89 S.C. 198 , 71 S.E. 959 . Kindred of the whole blood and half blood take as heir without distinction from a deceased intestate except for a preference to the kindred of the whole blood in equal degree. Article 110, sec. XIV, Mississippi Code of 1857. The lives of two donees in being, the measure of time within which the ultimate fee must vest, is a formula for conveyancing. Cannon v. Barry, 59 Miss. 302 ; Busby v. Rhodes, 58 Miss. 240 ; Halsey v. Gee, 79 Miss. 193 . The right heirs of the donor took by purchase and not by descent, as limitees under the will but not as heirs. Cannon v. Barry, 59 Miss. 302 . Jacob K. Swoope did not in legal effect devise to his wife an undivided one-third interest for life in the lands at issue in this case. She took same as a matter of legal right under the statutes of this state at that time, almost identical with the Alabama statute, as her dower to such undivided one-third interest the daughter, Tempe, was in legal effect the first donee, and that testator's brothers and sister or their descendants in the alternative were as a class, the second donees thereof. Henry v. Henderson, 101 Miss. 761 . Even if doubt should arise as to the devise of the undivided one-third interest subject to the widow's life estate, the will as a testamentary declaration would be void only to the extent of its illegality. Cheairs v. Smith, 37 Miss. 646 . That a devise in a will is void for the reason that it suspends the power of alienation for three lives in being does not invalidate other devises in the will. Woodruff v. Cook, 47 Barb. 304. The evident intention of the testator as to one legacy will not be defeated simply because of the failure of another legacy to vest. While the purpose of construing wills is to ascertain from the entire instrument the intention of the testator, yet such parts of will as show an intention contrary to established rules of law or public policy will be held void and remainder given effect. Kerr v. Dougherty, 59 How. Prac. 44; Davis v. Hutchinson, 282 Ill. 523 , 118 N.E. 721; Monterre v. Welling, 78 A. 507 ; Ann. Cas. 1912C 1311; Eaton v. Eaton, 88 Conn. 269 , 81 A. 191; Little v. Bowman, 114 N.E. 519; Mockbee v. Grooms, 254 S.W. 170 ; Hooper v. Wood, 625 S.E. 350. A decree is a final adjudication of what was pleaded, or might properly have been pleaded, in the bill in that case. Weatherly v. Pearl River Lumber Company, 8 Miss. 535 . It is not generally deemed essential that all the parties to both proceedings be identical, and a judgment is conclusive of the issues involved in a controversy between the parties and those standing in privity with them, although in the action in which it is pleaded some only of the parties are litigants, or because in the subsequent action others are joined as defendants. 15 R.C.L., page 1012. The rule that a party will not be allowed to maintain inconsistent positions in judicial proceedings is based on manifest justice. 10 R.C.L., page 698. As a general rule, a party is estopped from taking a position which is inconsistent with one previously assumed in the courts in the same action. 10 R.C.L., page 699. The right is not given a litigant to assume any position inconsistent with his attitude in a former case to the prejudice of his adversary. Snouffer v. City of Tipton, Ann. Cas. 1912d 414; Garden City v. Bank, 93 A.S.R. 284. Under the title, "judgments" a concise and comprehensive analysis of the principles involved in the instant cause is found. 15 Ruling Case Law, secs. 311, 314, 334, 335, 436, 450, 503 and 513; Shirley v. Fearne, 33 Miss. 653 , 69 Am. Dec. 375; Fisher v. Browning, 107 Miss. 729 , 66 So. 132; Ann. Cas. 1917C 466; Mayer v. McCracken, 245 Ill. App. 551 ; 92 N.E. 355; Jeter v. Hewitt, 16 L.Ed. 345; Dean v. Board of Supervisors, 135 Miss. 268 . The words brothers and sisters usually include brothers and sisters of the half blood. 40 Cyc. 1453; 1 Words and Phrases, page 884; 29 L.R.A. 541, note; Cox v. Clark, 9 So. 457. A gift to brothers and sisters extends to half brothers and sisters. 2 Jarman on Wills, page 165. The use of the plural "brothers" would have been inapt if testator meant only his one brother of the whole blood. Fuller v. Martin, 96 Ky. 500 , 29 S.W. 315; Lusby v. Cobb, 32 So. 6; Huntress v. Place, 137 Mass. 409 . The testator is presumed to have in mind the laws of his domicile in his use of technical words of legal import. Rose v. Rambo, 82 So. 149. If a legacy is given to a class of persons dependent on an uncertain event, that class is to be ascertained at the time of its happening if it ever happens, and the entire interest vests in such persons as at that time fall within the description of persons constituting that class. Zant v. Morris, 25 Ala. 285 ; Travis v. Morris, 28 Ala. 494 ; Insurance Company v. Webb, 54 Ala. 688 . A devise to the testator's wife with remainder to any child or children she might have, or in case she die without issue, to the heirs at law of the testator, vests upon the death of the wife, without issue, in the heirs living at her death, and not in those living at the death of the testator. 28 R.C.L., Wills, sec. 238; Schapiro v. Howard, 113 Md. 360 ; 140 A.S.R. 414; Barkley v. Gibbs, 233 S.W. 134; New York Life Ins. Trust Co. v. Winthrop, 237 N.Y. 93 , 31 A.L.R. 791. Where the devise to the class vests immediately upon the death of the testator, it is attended by all the incidents of a vested estate, and consequently the shares of all members of the class in existence at that time, but dying before the period fixed for the ascertainment of the members thereof, do not lapse, but devolve upon their appropriate representatives. 2 Jarman on Wills (6 Ed.), 1667, 1668; 24 Am. Eng. Ency. of Law (2 Ed.), 382-3; 73 American State Reports 405; 37 Miss. 39 . The term "right heirs" cannot and will not be construed to mean "lineal descendants" only. Middlesex Banking Company v. Field, 84 Miss. 646 . Where an election is once made by the party bound to elect, either expressly or inferred from his conduct, it binds not only himself but also those parties who claim under him his representatives and heirs. 1 Pomeroy's Equity Jurisprudence (4 Ed.), sec. 516. Logan Barbee, for appellees. In construing this will it is the duty of the court to ascertain the controlling intention of the testator and to enforce such intention, provided it is lawful, and it is the duty of the court to so construe the will if possible, as to make the instrument valid. The intention of the testator is to be ascertained from the whole will and from a consideration of all the provisions of the instrument taken together, and, if the language of the will is clear, definite and unambiguous, the court must gave the language its clear import. If, however, the language of the will is susceptible of two different constructions, one of which will defeat and the other sustain the provisions, that construction should be adopted which will sustain and uphold the will in all its parts, if it can be done consistently with the established rule of law. Bullard v. Bullard, 97 So. 1. The rule that a will shall if possible be so construed as to avoid partial intestacy, although anciently based in part on the obsolete doctrine that property not disposed of went to the executor, rests now, as formerly, on the ground that where the testator substitutes his will for the law he intends to embrace all his estate. M.J. Vaiden v. R.R. Hawkins, Extr., 59 Miss. 406 ; 40 Cyc. 1409; 28 R.C.L. 277, sec. 189; L.R.A. 1915C 1023. Where the words of a will are capable of two-fold construction, the one lawful and valid, and the other unlawful or invalid, the rule is, even in the case of a deed, much more in the case of a will, to adopt that construction which will make the instrument good and operative. Such words will receive that construction which is most consistent with the testator's intention ascertained from the whole will. Sizer's Pritchard Law of Wills (2 Ed.), page 2118, sec. 396; Pruden v. Pruden, 14 Ohio State Rep. 251. In construing the will the court should take into consideration the circumstances surrounding the execution thereof and the condition of the testator and beneficiaries. Fowlkes v. Clay, 88 So. 651 . The rule is well established in this state that "words of survivorship in a will, unless there is a manifest intent to the contrary, always relate to the death of the testator. But in the instant case there is manifest intent to the contrary. The circumstances surrounding the execution of the will, proper to be considered in connection with the language used, make it too clear for discussion that the gift over was to take effect upon the death of the donee, and that the general rule as to words of survivorship relating to the death of the testator can have no application without doing violence to the testator's manifest intent to the contrary. Abrahams v. Abrahams, 122 So. 625 . Where, in a will, a testator has used certain technical terms which terms have acquired, in the domicile of the testator, a fixed and unchangeable meaning, thus becoming a rule of property, these terms in such will, in whatever the state the will is up for construction, shall be given, in the interpretation of the will, the meaning that would be given them by the courts of his domicile. Ball v. Phelan, 49 So. 956. The will contains no clause showing that the words of limitation were not used by the testator in their established legal sense, and therefore they must be understood in that sense. By force of our statute the words, "dying without issue," mean "limitation to take effect when such person shall die, not having such heir, issue, etc., living at the time of his death, or born to him within ten months thereafter. In the absence of all expressions showing a different intention the words of limitation must be taken to refer to the time of the death of the testator. Sims v. Conger, 39 Miss. 231 , 312. Testator gave his wife a life estate in one-third of the land in controversy and upon her death to Tempe, that is to say, until his wife's death Tempe had no vested interest in this one-third. He then gave to his daughter, Tempe, a base or determinable fee in two-thirds of this same land on condition that if she should die without issue it should go to his whole brother and sister or their descendants, and when the widow of the testator died Tempe, and not before, became vested with a base or determinable fee in this one-third interest on the same conditions that she received the two-thirds interest, and the will violates no law of the land and must stand. Middlesex Banking Company v. Field et al., 37 So. 139. The doctrine of election rests upon the principle that he who seeks equity must do it, and means as the term is ordinarily used, that, where two inconsistent or alternative rights or claims are presented to the choice of a party by a person who manifests the clear intention that he should not enjoy both, then he must accept or reject one or the other, and so, in other words, that one cannot take a benefit under an instrument, and then repudiate it. Barrier v. Kelly, 33 So. 974. Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded both at law and in equity, from asserting rights which might perhaps have otherwise existed, either of property, or contract, or of remedy as against another person, who has in good faith relied upon such conduct, and has been led thereby to change his position for the worse, and who on his part acquires some corresponding right either of property, of conduct or of remedy. 2 Pomeroy's Equity Jurisprudence (4 Ed.), 1642, sec. 804. The principal on which the doctrine of estoppel by conduct rests is that it would be a fraud in a party to assert what his previous conduct had denied, when on the faith of that denial others have acted. When silence becomes a fraud, it will operate as an estoppel. Estoppel by conduct "arises from an act or declaration of a person intended or calculated to mislead another, on which that other has relied, and has so acted, or refrained from action, as that injury will befall him if the truth of the act or declaration be denied. Staton v. Bryant, 55 Miss. 261 . If a person by his conduct induces another to believe in the existence of a particular state of facts, and the other acts thereon to his prejudice, the former is estopped as against the latter, to deny that that state of facts does in truth exist. 16 Cyc. 680. Irvin A. Clement, and L.E. Farley, of Memphis, Tennessee, for appellees. A devise to a class contemplates the determination of the members of the class either at the time of the death of the testator, from which the will speaks or from some later time, usually when the estate devised is to vest in enjoyment. Hence where there is such a devise it does not include a person dead at the date of the execution of the will, who had he survived the testator would have fallen within the description of the class. 28 Ruling Case Law, sec. 241; 17 Alexander, Commentaries on Wills, p. 1284, sec. 876; Re Estate of Hutton, 180 P. 882, 3 A.L.R. 1673, 1682; Davis v. Wynn, 80 Ga. 673 , 6 S.E. 183; Nicholson v. Nicholson, 115 Ia. 493, 88 N.W. 1064; Pimel v. Benjamin, 183 N.Y. 194 , 76 N.E. 157 ; 2 L.R.A. (N.S.) 580, 5 Ann. Cas. 239; Wescott et al. v. Higgins et al., 58 N.Y.S. 938; White v. Mass. Inst. of Technology, 50 N.E. 512; Parish v. Walton, 190 N.E. 947. Where words are susceptible of two reasonable interpretations one of which will defeat or destroy the will or a part thereof, as by erecting an illegal perpetuity, and the other will result in the upholding of the will or a part thereof, the latter construction is to be preferred, and in such case such construction will yield to obvious compulsion only. The testator is presumed to know the limitations placed on his power of disposition, and to intend to comply therewith. 28 R.C.L., Wills, sec. 167; 11 Schouler on Wills (6 Ed.), 64; Page on Wills, sec. 814, page 1381; 30 Cyc. subtitle Wills, page 667; Seitx v. Faversham, 98 N.E. 385 ; Beardsley v. Johnson, 134 A. 530 ; Colt v. Industrial Trust Co., 146 A. 628 ; Clossett v. Burtschaelle, 230 P. 554; Empson v. Empson, 204 N.Y.S. 1, 123 Misc. Rep. 1; In re Gallien, 247 N.Y. 195 , 160 N.E. 8 ; In re Shapiro's Estate, 236 N.Y.S. 280; Farman v. Farman, 77 A. 70 ; In re Heywood's Estate, 82 P. 755 ; Estate v. Dunphy, 81 P. 315 ; Gray v. Whittemore, 193 Mass. 367 , 78 N.E. 422 ; 10 L.R.A. (N.S.) 1143; 116 Am. Rep. 246; Henry v. Henderson, 101 Miss. 751 , 58 So. 354; Bratton v. Bratton, 118 So. 353; Bullard v. Bullard, 132 Miss. 544 , 97 So. 1; Castleberry v. Stringer, 176 Ala. 250 , 57 So. 849. A judgment of a court of competent jurisdiction is binding on those who were parties to it, not only with reference to the immediate subject-matter thereof, but also as to all matters litigated and determined therein, and especially as to matters which had necessarily to be determined in order to reach the conclusion embodied in the judgment. And the fact that such judgment was predicated on an erroneous idea of the law, and that the decision of the court was wrong as a matter of law does not affect its character as res adjudicata. More especially is this true, even though the judgment be void where it was obtained at the instance of the party now attacking it, and where such party has accepted the benefits awarded thereunder. 15 Ruling Case Law, sec. 311; Shirley v. Fearne, 33 Miss. 653 , 668; Mayer v. McCracken, 245 Ill. 551 , 92 N.E. 355; Fisher v. Browning, 107 Miss. 729 , 66 So. 132; Ann. Cas. 1917C 466; Jeter v. Hewitt, 22 How. 352, 16 L.Ed. 345; Dean v. Board of Supervisors, 135 Miss. 268 , 99 So. 563. Rules of testamentary interpretation with a view to the discovery of intention can never transcend this limit; this intention so determined must be justified by the law and the language of the will. Rules favoring the early vesting of remainders and referring words of survivorship to the death of the testator can never be used to wrest language from its plain meaning, for as respects these things, testators are free to do as they please with their property. Bingham v. Sumner, 206 Ala. 266 , 89 So. 479 . In cases of that character it is held in the absence of something in the will evidencing a contrary intent that the words "dying without issue" create a defeasible fee, which will be defeated by the death of the devisee at any time without issue then living. Baker v. Thomas, 189 S.W. 215. A defeasible fee is created when the devise is to one with a proviso that it shall be defeated on the happening of a named continency, as where the devise is to A, and if he should die without issue, then to B. In such a case A takes a fee subject to be defeated by his death without issue. Parepoint v. Parepoint's Adm'r, 15 S.W.2d 513 . If however there is a devise to one of a fee determinable upon his death under circumstances which are in fact contingent, such as death without issue, the testator is held to have contemplated a death which might occur before or after his decease and the will is not construed as providing for a death occuring in the lifetime of the testator. Tutwiler v. McClure, 120 N.E. 458; Risser v. Ayers, 306 Ill. 293 , 137 N.E. 851; Davis v. Scharf, 133 A. 197; Micheal v. Minchin, 101 A. 283. In a number of cases death without issue has been held to refer to death after that of testator. Many of these cases assume that this is the prima facie meaning of such a phrase. Page on Wills, sec. 1141; Britton v. Thornton, 112 U.S. 526 , 27 L.R.A. (N.S.) 1047; Davis v. Scharf, 133 A. 197; Farrar v. Pemberton, 152 S.E. 339. If some of the class are dead and their descendants take by substitution a per capita distribution between the original members and the groups of representatives of deceased members is indicated, together with a per stirpes distribution of the share of each separate group as between the members thereof then the heirs or issue of the deceased member will take only the share which their deceased parent would have taken. 2 Page on Wills, sec. 944. A judgment rendered by a court having jurisdiction of the parties and subject matter, whether correct or not, is conclusive and indisputable evidence as to all rights, questions or facts put in issue in the suit and actually adjudicated therein when the same come again into controversy between the same parties or their privies upon the same or a different cause of action. 34 Corpus Juris, page 902, sec. 1312; Redmond v. Hubbard, 140 Ky. 71 , 130 S.W. 955, 37 L.R.A. (N.S.) 728; State v. Wilson, 107 N.W. 230; Burrell v. Jean, 132 N.E. 704. There is a distinction to be drawn between matters which are concluded because of a judgment, and those which are concluded because they are res adjudicata. The latter term is much broader than the former, and probably inclusive of it. The judgment is the specific disposition by the court of the immediate subject matter of the lawsuit — the decision of the court upon the cause of action sued on. That decision when on the merits is finally and forever conclusive of that cause of action between the same parties. Res adjudicata includes not only this disposition of the cause of action sued on, but also the holding or finding of the court on all matters specifically pleaded on which issue is joined, or specifically decided by the court, or which whether pleaded or specifically decided or not, were matters necessary to be decided in order to render the judgment. 15 Ruling Case Law, sub-title judgments, sec. 450 and 451; 34 Corpus Juris, secs. 1296, 1311, 1315, 1361, 1331, 1341, 1343, page 874, et seq.; Greene v. Bank, 73 Miss. 542 , 19 So. 350. The general rule is that a judgment or decree is conclusive between parties and privies. There is no difference in this respect whether the final decision was rendered by a court of law or equity. It is conclusive both as to the law and fact in issue. The estoppel precludes parties and privies from contending to the contrary of that point or matter of fact which having once been distinctly put in issue between them or those to whom they are privies in estate or law has been on such issue joined solemnly found against them. Land v. Kiern, 52 Miss. 341 . The rule is, that, in a second action between the same parties and their privies although the causes of action may be different, the judgment in the first action is res adjudicata in the second as to any point or question actually litigated and determined in the first. Von Zondt v. Braxton, 115 So. 557 ; 34 C.J. 868; Y. M.V.R.R. Co. v. Sibley, 111 Miss. 21 , 71 So. 167; Miller v. Buckely, 85 Miss. 706 , 38 So. 99. A fact or question which was actually and directly in issue in a former suit and was there judicially passed upon and determined by a domestic court of competent jurisdiction, is conclusively settled by the judgment there in so far as concerns the parties to that action and persons in privity with them and cannot be again litigated in any future action between such parties and privies in the same court or in any other court of concurrent jurisdiction upon the same or a different cause of action. Harvison v. Turner, 116 Miss. 550 . In determining whether a question is res adjudicata the following principles of law should be kept in mind; that a judgment is presumed to be correct where there is any possible state of facts to justify it. And that where a court has jurisdiction of the subject matter and the parties in interest its judgment is not alone res adjudicata of the question actually presented by the pleadings but is also res adjudicata of all questions necessarily involved and which could have been presented. Bates v. Strickland, 139 Miss. 636 . As to the proposition that Darrow v. Swoope involved only a part of the land devised by testator's will, the finality of the adjudication still holds. Davis v. Hart, 66 Miss. 642 , 6 So. 318. Under the principles of res adjudicata all the questions involved in a cause and necessarily decided are concluded as between parties and privies except insofar as the judgment may have been beyond the power of the court. Dean v. Board of Supervisors, 135 Miss. 268 , 99 So. 563. Res judicata renders white that which is black and straight, that which is crooked. Jeter v. Hewitt, 22 How. 352, 16 L.Ed. 345. The judgment is conclusive of the title of the parties against whom it is rendered, whenever the title has been the subject matter of the suit and has been adjudicated. Shirley v. Fearne, 33 Miss. 653 ; Smith v. Smith, 200 S.W. 643. A judgment settled and entered in whole or in part by the agreement, consent or compromise of the parties is not less effective as a bar or estoppel than one rendered upon contest and trial. 34 Corpus Juris, sec. 1198, page 779; Blackbourn v. Senatobia, etc. Ass'n, 74 Miss. 852 . According to all the authorities the weight of modern judicial opinion is that the term "right heirs" is simply equivalent to "heirs." The object of the Two Donee Statute is to establish a limit beyond which the grantor may not go, but within which he may exercise unbounded discretion, so that he may limit the remainder to the first born or to the last born, or to the married or single, or to the adult or minor heirs of the life tenant, taking care always that the fee shall vest within the period prescribed by the rule against perpetuities. Cannon v. Barry, 59 Miss. 289 . The statute prescribes a limit of time, and not a formula of conveyance. Banking Company v. Field, 84 Miss. 646 . In case of a devise to a class of persons, in the absence of a contrary intent, the members of such class who will take are to be determined at the period of distribution. Branton v. Buckley, 99 Miss. 116 , 54 So. 850; L.R.A. 1917C 527. The words "heirs," "next of kin," "nearest relations," etc. have been given a meaning entirely at variance with their strict technical signification. 13 A.L.R. 47; 20 A.L.R. 351; 30 A.L.R. 915; 49 A.L.R. 174; 61 A.L.R. 1005. Where a testator uses the word "heirs" as applied to the descendants of a living person the general rule of construction is that he intends the children of such person. Heath v. Hewitt, 127 N.Y. 166 , 27 N.E. 959, 13 A.L.R. 46. Where the will recognizes the ancestor as living and makes a devise to his heir eo nomine this shows that the term was not used in its strictest sense, but as meaning the heir apparent of the ancestor named. Hared v. Horton, 1 Denio. 165. It has been determined in many cases that the word "heirs" notwithstanding its primary and well understood meaning is susceptible of more than one interpretation. Vannorsdall v. Van Deventer, 51 Barb. 137; Matter v. Gilman, 85 Misc. 651, 148 N.Y.S. 1047; Bailey v. Bailey, 25 Mich. 185 . A devise to the heirs of one who is stated in the will to be living is a valid disposition in favor of those who would be his heirs if he should then die. Wallace v. Diehl, 95 N.E. 646 , 33 L.R.A. (N.S.) 9. In several cases indications have been held sufficiently clear to show that the testator meant the class to be ascertained at the death of a life-tenant or of a primary devisee. Wood v. Bullard, 151 Mass. 324 ; 7 L.R.A. 304, 25 N.E. 67; Welch v. Brimmer, 169 Mass. 204 , 47 N.E. 699; Re Bowers, 109 App. Div. 566 , 96 N.Y.S. 562, 184 N.Y. 574 , 77 N.E. 1182 ; In Re McFee, W.N. 186, 79 L.J. Ch. (N.S.) 676, 103 L.T. (N.S.) 210; McKee's Estate, 198 Pa. 255 , 47 A. 993; Forrest v. Porch, 100 Tenn. 391 , 45 S.W. 676. There are many cases where the primary devisee was testator's sole heir at law, and there was a limitation over after his death to a class such as "heirs" or "next of kin" etc., holding that in such case the "heir at law" was excluded, and the ultimate devisees determined as of the time of the taking effect of the limitation over. Marsh v. March, 1 Bro. Ch. 293; Jones v. Colbeck, 8 Ves. Jr. 38; 6 Rev. Rep. 207; Miller v. Eaton, C. Cooper 272; 14 Rev. Rep. 259; Butler v. Bushnell, 3 M.Y.L. K. 232; Clayton v. Bulwer, 5 Myl. W. 108; Lees v. Massey, 3 De G.F. J. 113; In re Greenwood, 31 L.J. Ch. (N.S.) 119; Beers v. Grant, 110 App. Div. 152 , 97 N.Y.S. 117, 185 N.Y. 533 , 77 N.E. 1181 ; Bostch Safe Dep. Tr. Co. v. Blanchard, 196 Mass. 35 , 81 N.E. 654; Hardy v. Gage, 66 N.H. 552 , 22 A. 557 ; Doe ex dem King v. Frost, 3 Ban. and Ald. 546; Salter v. Drowne, 141 App. Div. 352 , 126 N YS. 686; Delaney v. McCormick, 88 N.Y. 174 ; Baker v. Crawford, 85 S.C. 54 , 67 S.E. 7 ; Gourdin v. Shrewsbury, 11 S.C. 1 ; Walker v. Dunshee, 38 Pa. 430 ; Tatham's Estate, 250 Pa. 269 , 75 A. 520, Ann. Cas. 1917A 855; Henkins v. Henkins, 287 Ill. 62 , 122 N.E. 88; Sears v. Russell, 8 Gray 86; Beck v. Booth, 110 So. 204 . If an estate in fee simple is clearly given to a person, a limitation over to another upon such person's death or in case of his death not coupled with any contingency of time or otherwise, would, if regarded as referring to his death after that of testator, be invalid as an attempt to change the fee simple into a life estate. Consequently, in order to give effect to such a limitation it is almost invariably construed as referring to a death before testator, a substitutionary clause, as it is frequently termed, naming a person to take in case the person first named is not in existence to take at the time the will goes into effect. Tiffany on Real Property (2 Ed.), sec. 166, page 565. The presumption that "dying without issue" in such case means death during the lifetime of the testator may be overcome by the provisions of the will. The rule that death means death during the lifetime of the testator is only a prima facie rule of construction. The will and the surrounding circumstances may show that testator had fixed some other point of time as that upon which such death or death without issue is to occur in order to divest the estate. Effect will be given to any indication however slight that testator contemplates the death of the beneficiary after his own. Page on Wills, section 1142. But when the death of the first taker is coupled with other circumstances which may or may not ever take place, as for instance, death under age, or without children, the devise over unless controlled by other provisions of the will takes effect according to the ordinary and literal meaning of the words upon death under the circumstances indicated at any time whether before or after the death of the testator. Britton v. Thornton, 112 U.S. 526 , 5 S.Ct. 291, 28 L.Ed. 816. Argued orally by Julian C. Wilson, and Paul Bowdre, for appellants, and by Irwin Clement, and R.F.B. Logan, and L.E. Farley, for appellees of the full blood, and by W.W. Magruder, and Charles Strong, for appellee, of the half blood. Note: This opinion (See 135 So. 484) published only to give the facts, but is withdrawn officially. See the official opinion immediately following.