I am unable to agree with the construction of item two of the will arrived at in the majority opinion. The late and lamented Judge Albert H. Whitfield in Moss Point Lumber Co. v. Board of Supervisors, 89 Miss. 448, 42 So. 290, 317, 873, wrote: "The test is with me, and has always been, and always shall be, does the proposition, announced as law, square with sound principle and true reason? If so, I accept it, because it so squares; if not, no name, however great, shall be permitted to lead me into false paths."
In my humble judgment, the majority opinion marks a departure from the established rules of construction of wills that have existed in this state for almost one hundred years. Let us look to those rules. They are so firmly established in the jurisprudence of this state that surely, at this late date, their soundness cannot be questioned. In construing a will, the court's paramount duty is to look to the language used by the testator in the whole will and ascertain therefrom the intention of the testator, at the time of the making of the will, and to then give effect to this intention unless contrary to the law or public policy. Cross v. O'Cavanaugh, 198 Miss. 137, 21 So.2d 473; Yeates v. Box, 198 Miss. 602, 22 So.2d 411; Brumfield v. Englesing, 202 Miss. 62, 30 So.2d 514; Temple v. First National Bank of Meridian, 202 Miss. 92, 30 So.2d 605.
In so ascertaining the intention of the testator, the court is permitted to look only to the will and the intention of the testator must be ascertained from the language there used. Yeates v. Box, supra. The court is bound by the words the testator employed. Simpson v. Watkins, 162 Miss. 242, 139 So. 400.
The court cannot consider what it believes the testator intended to say but it is bound by and must ascertain the testator's intention from what he did say. National Bank of Greece v. Savarika, 167 Miss. 571, 148 So. 649, *Page 480 652. We there said: "In his expression, and not in his silence, we seek his meaning, and, when we exceed this rule, we make the will, and direct the way the bounty should be applied."
Bearing steadily in mind these binding rules of construction, let us look to the will.
Item one of the will reads as follows:
"If she be living at my death, then it is my will that my sister in law Miss Elizabeth Cary Lemly, my deceased wife's sister of Jackson, Miss. shall have and if she be alive at my death then I do hereby devise and bequeath unto her, the said Miss Elizabeth Cary Lemly in fee simple all the income of my Estate of every description and all undivided interest owned by me in lands, needed for living expense and comfort as long as she may live.
"All income kept separate and all property kept in good rental condition all expenses paid out of this fund as well as the amount needed for Miss Bessie Cary Lemly's comfort.
"The income will be from the following described property. My interest in Rooming house 520 North State St.; apartment house 412 High St., two duplexes at 144 148 Princeton St.; one dwelling at 1004 Spengler St. and also any income from Bonds or stock."
It is clear that this item conferred upon Miss Lemly a limited life estate in trust to be used for her needs and comfort, subject to the limitations therein provided and she having survived the testator this limited life estate in trust vested in her on the death of the testator.
Miss Lemly died on October 17, 1947, and we must again look to the will and ascertain the intention of the testator as to who should take at her death.
Item two of the will reads: "But if at my death Miss Elizabeth Cary Lemly shall be dead, then my will is that all of the above designated property real and personal referred to above in Item One of this will shall go to the nieces and nephews or others designated, and be divided as listed." *Page 481
There is no lawful way to construe this or any other will but by ascertaining the testator's intention from the language used in the will. "But, if at my death Miss Elizabeth Cary Lemly shall be dead, then my will is . . ." is the express language of the testator in item two. The majority opinion construes this and ascertains the testator's intention to be: "But, if at my death Miss Elizabeth Cary Lemly shall be living, then at her death my will is . . ." By construction the majority opinion changes the word "dead" contained in item two to "living", in direct and open contradiction to the express language of the will. They point to no language contained within the four corners of the will from which the court can ascertain the intention of the testator to use the word "living" instead of the word "dead" that he actually used. They go wholly outside the will and gather this supposed intent on the part of the testator from parol testimony taken by the chancellor and showing: 1. That the testator lived on good terms with Miss Lemly, 2, that she was in wretched health, 3, that she suffered with cancer and was approaching the end of her life, 4, that McKay inherited part of the property from his wife, and 5, that some of the alleged beneficiaries made conveyances between themselves. From this parol testimony, and it alone, they seek to ascertain and do ascertain the supposed intention of the testator. With all deference to the superior wisdom of my brethren, my mind cannot reconcile this procedure with the solemn duty of this court, under the established law of the land, to ascertain the intention of the testator solely from the actual language used by him within the four corners of his will, giving effect, if possible, to each and every part thereof. In addition, though the will be silent thereasto, they in effect change the language of the will reading: "But if at my death Miss Elizabeth Cary Lemly be dead, then my will is that all the above designated property real and personal . . . shall go to the nieces and nephews or others designated . . ." not only *Page 482 so as to change the word "dead" and substitute therefor the word "living" but also to add the words "at her death", and thereby cause the will to read: "But if at my death Miss Cary Lemly be `living' then my will is that `at her death' all of the above designated property real and personal . . . shall go to the nieces and nephews or others designated . . .". If, as we said in Simpson v. Watkins, 162 Miss. 242, 139 So. 400, the court, in ascertaining the intention of the testator, is confined in its search to the intention shown by the language contained in the will and is bound by the words the testator employed therein, where can justification in the law be found for lifting bodily from the will the word "dead" and reading into the will its antonym "living". If, as we said in National Bank of Greece v. Savarika, 167 Miss. 571, 148 So. 649, the court cannot consider what the testator might have intended to say but must ascertain the testator's intention from what he actually did say, what right have we to take this item two of his will and from a presumed intention, arrived at from sources wholly outside the will, write into the will a disposition of his property at the death of Miss Cary Lemly in the event she survived him, when there is neither any such provision written by the testator in the will, nor any language therein used by him showing such to be his intention. I am deeply concerned over the majority opinion. I fear it is a departure from our former decisions on the construction of wills.
The language of the will is plain. Its meaning is clear. What James U. McKay said in his will was: (1) "If she be living at my death, then it is my will that my sister-in-law Miss Elizabeth Cary Lemly" take a limited life estate in trust, and (2) "But if at my death Miss Elizabeth Cary Lemly shall be dead, then my will is that all of the above designated property real and personal referred to above in item one of this will shall go to the nieces and nephews or other designated and to be divided as listed. . . ." These are the only two contingencies *Page 483 listed in the will. The will did not say how the property should go at the death of Miss Elizabeth Cary Lemly, in the event she should survive him. Only he had the right to make his will. We have no power to make a will for him or to reform the one he so made.
According to the light of my limited and perhaps feeble understanding, James U. McKay died intestate except as to the limited life estate in trust devised to his sister-in-law, Miss Elizabeth Cary Lemly, and on her death his property descended by the laws of descent and distribution to his heirs at law.
Hall, J., and McGehee, C.J., join in this dissent.