Volume 243 — Mississippi Reports

<bold>1. Wills — construction — in construing will, intention of</bold> <bold>testator is controlling, unless the intention is invalid under</bold> <bold>the law.</bold> In construing a will, intention of testator is controlling, unless the intention is invalid under the law. <bold>2. Wills — construction — Court will so construe ambiguous will,</bold> <bold>if reasonably possible, as to render it not invalid under rule</bold> <bold>against perpetuities or the two-donee statute.</bold> If reasonably possible, Court will so construe an ambiguous will as to render it not invalid under rule against perpetuities or the two-donee statute. <bold>3. Wills — construction — technical rules of law — court</bold> <bold>decisions — intent of testator.</bold> No two wills probably ever were written in precisely the same language throughout, and probably no two testators ever did die under precisely the same circumstances in relation<page_number>Page 322</page_number> to their estate, family and friends, so that technical rules of law and adjudicated cases are not of as great assistance in the construction of a will as they are in the construction of some instruments of a different character, still they are not to be disregarded altogether, but should be followed, unless to do so would do violence to the clear intent of the testator. <bold>4. Perpetuities — vested interest not subject to rule against.</bold> A vested interest is never obnoxious to rule against perpetuities. <bold>5. Wills — devise to a class vests immediately on testator's</bold> <bold>death.</bold> When a devise is to a class, it vests, upon the death of the testator, in those members then in being, subject to be opened up and let in members of such class who may afterwards come into existence before the date fixed for the ascertainment of the members of the class. <bold>6. Wills — devise in trust to grandchildren as a class as not</bold> <bold>violating rule against perpetuities.</bold> Devise in trust for grandchildren with income and principal to be used in discretion of trustees for benefit of grandchildren and with corpus to be paid to grandchildren per capita and amounts paid out charged to account of grandchildren for whose use and benefit the amount is expended and deducted from that grandchild's share on distribution, vested in grandchildren, as a class, at death of testator, according to their respective interests, and did not violate rule against perpetuities even though trust contained spendthrift provision and was to end and distribution to take place when youngest grandchild reached age of 25. Headnotes as approved by Lee, P.J. <center> ON SUGGESTION OF ERROR</center> May 14, 1962 140 So.2d 843 <bold>7. Perpetuities — rule against perpetuities — statement of rule</bold> <bold>— what rule is and is not.</bold> Rule against perpetuities is rule invalidating interests which vest too remotely, it is not a rule against suspension of power of alienation of property through creation of interests in unborn or unascertained persons. <bold>8. Perpetuities — same — what rule is not.</bold> Rule against perpetuities is not satisfied by fact that there are persons in being who can together give complete title to purchaser.<page_number>Page 323</page_number> <bold>9. Perpetuities — same — interest violating rule fails because</bold> <bold>it vests too remotely.</bold> Interest violating rule against perpetuities fails because it vests too remotely though it may be and usually is freely alienable at all times. <bold>10. Perpetuities — wills — class gifts — devise in trust for</bold> <bold>grandchildren whether living at death of testator — lives in</bold> <bold>being were testator's daughters.</bold> Measuring lives in being, for purposes of application of rule against perpetuities to devise in trust for grandchildren whether living at death of testator, were lives of testator's daughters. <bold>11. Perpetuities — period of time — lives in being — lives which</bold> <bold>are measure of period must be indicated by creating</bold> <bold>instrument.</bold> Lives in being which are measure of period for rule against perpetuities purposes must be indicated by creating instrument but need not be mentioned in it. <bold>12. Perpetuities — same — same — lives used as measure of period</bold> <bold>— generally.</bold> Lives in being used as measure of period, for purposes of rule against perpetuities, need not be those of persons who take anything under instrument, they need not be lives of holders of previous estates, and need not be connected in any way with property or persons designated to take. <bold>13. Perpetuities — wills — class gifts — devise in trust for</bold> <bold>grandchildren — where estates vest at death of testator</bold> <bold>subject to being reopened within period of lives in being, but</bold> <bold>date fixed for final distribution renders gifts contingent and</bold> <bold>obnoxious to rule against perpetuities.</bold> Vesting in grandchildren occurred within permitted period under rule against perpetuities under will providing trust for grandchildren to continue as active trust and terminate when youngest grandchild, "whether now living or hereafter born", should become 25 years of age, as 25-year period referred to time of distribution and not to vesting, and estates of grandchildren living at testator's death vested in them subject to being reopened within period of lives in being. <bold>14. Wills — perpetuities — equitable approximation — whether</bold> <bold>testator's dominant plan would be emasculated by applying</bold> <bold>doctrine of equitable approximation poses question of fact in</bold> <bold>each particular case.</bold><page_number>Page 324</page_number> Whether testator's plan would be emasculated by sustaining a part of class gift, as by reducing age contingency from 25 years to 21 years, so as to save gifts from bar against rule against perpetuities should become a question of fact in each particular case. <bold>15. Wills — perpetuities — courts should enforce separable valid</bold> <bold>part of will where such action carries out testator's</bold> <bold>principal purposes.</bold> Court should save such parts of gift as rigid requirements of rule against perpetuities do not strike down, provided that such action carries out testator's principal purposes. <bold>16. Wills — class gifts — the all-or-nothing rule of Leake v.</bold> <bold>Robinson does not obtain in Mississippi.</bold> The all-or-nothing rule of Leake v. Robinson, that if interests of one class member can possibly vest too remotely, entire class gift must fail, does not obtain in Mississippi. <bold>17. Wills — perpetuities — construction of will — application of</bold> <bold>rule against perpetuities.</bold> Application of rule against perpetuities involves two-fold problem: to construe devise to carry out dominant purpose of testator, if possible, and to preserve purpose of rule against perpetuities by invalidating only those interests which vest too remotely. <bold>18. Wills — construction of will — problem of whether under</bold> <bold>testator's dominant purpose, gift should fail, or whether</bold> <bold>separable valid part should be enforced.</bold> Problem of whether total plan of testator and portion which is invalid under rule against perpetuities are so integral and related to one another that it can be inferred that testator would have preferred all to fail rather than to have part stand alone is one of separability and not perpetuities; it is a question of construction, not application of a rule of law. <bold>19. Wills — class gifts — perpetuities — application of cy pres</bold> <bold>or equitable approximation to prevent failure in toto of class</bold> <bold>gift.</bold> Saving principle of cy pres or equitable approximation may be applied to testamentary gifts to individuals so as to prevent failure in toto of class gift which is partially invalid under rule against perpetuities. <bold>20. Wills — doctrine of equitable approximation — a part of</bold> <bold>equity jurisdiction.</bold> Doctrine of equitable approximation is part of equity jurisdiction.<page_number>Page 325</page_number> <bold>21. Wills — testamentary trust — perpetuities — doctrine of</bold> <bold>equitable approximation applied — case in point.</bold> Doctrine of equitable approximation was applicable to testamentary trust erected under will providing that, after death of testator's sister, 80 percent of estate was placed in trust for benefit of grandchildren, with corpus to be paid to grandchildren "when my youngest grandchild (whether now living or hereafter born) shall become 25 years of age", on the second basis of decision, that the gift to grandchildren was contingent, so as to effectuate testator's desire that grandchildren have bulk of estate and that it not vest in his daughters; and thereunder estate would be distributed to grandchildren when youngest reached 21 years of age. Headnotes as revised by Ethridge, J. <center> ON MOTION</center> May 28, 1962 142 So.2d 13 <bold>22. Appeal — motion for authority to file second suggestion of</bold> <bold>error overruled.</bold> Where, following original decision on appeals and cross-appeals, appellees had filed a suggestion of error, and, after responses and rebuttal brief and thorough considerations by Court en banc, suggestion of error had been overruled, motion for authority to file a second suggestion of error would be overruled. Rules 14(3), 33, Supreme Court Rules. Headnote as approved by McGehee, C.J.

<bold>1. Witnesses — dead man's statute — party who claimed to be</bold> <bold>surviving widow incompetent to testify.</bold> Party who claimed status of decedent's widow was incompetent to testify to matters concerning her marriage to decedent and defendants' plea that she was estopped to claim status. Sec. 1690, Code 1942. <bold>2. Appeal — dead man's statute — party's incompetent testimony</bold> <bold>concerning her marriage to decedent harmless where fact of</bold> <bold>marriage judicially admitted.</bold> Admission, in proceeding on party's petition to be declared decedent's widow, of party's incompetent testimony concerning<page_number>Page 473</page_number> her marriage to decedent and defendants' plea of estoppel, was harmless, where fact of marriage was judicially admitted, and defendants' evidence alone was insufficient to establish estoppel. <bold>3. Pleading — answer which neither admits nor denies allegation</bold> <bold>of petition admits allegation.</bold> Answer which neither admitted nor denied allegation of petition that party had never been divorced from decedent, was admission that there had been no divorce. Sec. 1291, Code 1942. <bold>4. Marriage — presumption of validity of second marriage is not</bold> <bold>conclusive, and yields to proof.</bold> Presumption of validity of second marriage is not conclusive, and yields to proof. <bold>5. Descent and distribution — estoppel to claim as widow —</bold> <bold>burden of proof.</bold> Defendants who pleaded that petitioner was estopped from claiming widow's rights in decedent's estate had burden of proving estoppel. <bold>6. Descent and distribution — estoppel by conduct to claim</bold> <bold>widow's rights — evidence insufficient to show an estoppel.</bold> Defendants' evidence was insufficient to establish that petitioner's conduct in leaving decedent estopped her from claiming widow's rights, as against claimant under second marriage. <bold>7. Executors and administrators — widow's allowance — burden of</bold> <bold>proof on claimant.</bold> Party claiming widow's rights had burden of establishing claim to year's support, by showing either that she was being supported by decedent at time of his death, or that she was away without fault on her part. Sec. 561, Code 1942. <bold>8. Executors and administrators — homestead — widow's allowance</bold> <bold>— evidence insufficient to require award of widow's allowance</bold> <bold>or setting aside of homestead.</bold> Petitioner's evidence as to whether she had been supported by decedent at time of his death or was away from him without fault on her part, was insufficient to require award of widow's allowance or setting aside of homestead. Sec. 561, Code 1942. Headnotes as approved by Jones, J.<page_number>Page 474</page_number>

<bold>1. Aeronautics — negligence — degree of care required in</bold> <bold>operation of aircraft.</bold> Application of ordinary rules of negligence to aviation fixes greater degree of responsibility, since operation of aircraft calls for greater degree of care than operation of instrumentality which is incapable of inflicting serious injury. <bold>2. Aeronautics — negligence — damage to persons and property —</bold> <bold>ordinary rules of negligence apply.</bold> Ordinary rules of negligence apply to cases of damage to persons and property, caused by aircraft. <bold>3. Negligence — probability of injury — duty to avoid injury to</bold> <bold>others.</bold> Every person must exercise sense and intelligence to avoid injury to others; and where it appears that investigation and inspection may disclose danger, duty to investigate and inspect arises. <bold>4. Negligence — circumstantial evidence — proof by — when may be</bold> <bold>established by.</bold> Negligence may be established by circumstantial evidence where circumstances are such as to take case out of realm of conjecture and place it within field of legitimate inference. <bold>5. Negligence — when question for jury — when question for</bold> <bold>court.</bold> Question whether defendant is guilty of negligence is one for jury, or judge sitting as trier, and is for court only where facts are such that all reasonable men must draw same conclusion from them. Sec. 1455, Code 1942. <bold>6. Aeronautics — negligence — in operation of aircraft —</bold> <bold>freightening animals — damages.</bold> Evidence in action for damage sustained when plaintiff's cattle stampeded when defendants' airplane took off from levee where it had landed was sufficient to take to jury question whether defendants had been negligent in landing plane at place whence its ascent would affect cattle. Federal Aviation Act of 1958, Sec. 307(c); 49 U.S.C.A., Sec. 1348(c); Sec. 7536-12, Code 1942.<page_number>Page 608</page_number> <bold>7. Aeronautics — negligence — operation of aircraft — principal</bold> <bold>liable for pilot's alleged negligence in stampeding cattle.</bold> Company which engaged plane and pilot, and whose employee, as passenger, directed pilot to land in and take off from location near plaintiff's cattle, was liable as principal for pilot's alleged negligence in stampeding cattle. Secs. 7536-12, 7536-26(9), Code 1942. Headnotes as approved by Rodgers, J.

<bold>1. Civil rights — systematic exclusion of Negroes from jury —</bold> <bold>quashing indictment and special panel.</bold> Motion to quash rape indictment and special panel should have been granted where defendant was a Negro, and no Negroes had ever served upon juries of the county, although there were Negro qualified electors in the county, and although some names of Negroes had been put in box where they might have been drawn as jurors, in the year in which crime occurred and in which defendant was indicted and tried there were no names of Negroes in the jury box. Headnote as approved by Jones, J.

<bold>1. Eminent domain — damages — award excessive — remittitur</bold> <bold>ordered.</bold> Award of $6,943.85 for the taking of 16 acres of an 86-acre farm and for damages to the remaining property, and destruction of a natural water supply, was excessive, and an award of $5,000 would be adequate. Headnote as revised by Lee, P.J.

<bold>1. Specific performance — bill of complaint not subject to</bold> <bold>general demurrer.</bold> Bill of complaint for specific performance of alleged contract for exchange of realty was not subject to general demurrer on single ground that "there is no equity on the face of the bill". Headnote as approved by McGehee, C.J.