Blackbourn v. Senatobia Educational Ass'n

74 Miss. 852 | Miss. | 1897

Stockdale, J. ,'

delivered the opinion of the court.

A. L. Blackburn died in Tate county, at his home, November 1, 1893, leaving a will giving all his property, real and persona], except some small bequests, to the Senatobia Educational Association. Said will was probated by the chancery court of Tate county, and B. A. Tucker qualified as executor, who, as such executor, returned into court, on the seventeenth of November, 1893, an inventory and appraisement of said estate, which were approved at the March, 1891, term of said court, but a year’s support was not set aside to the widow.

On December, 1893, Mrs. Sarah Blackbourn, the widow, and only surviving heir of A. L. Blackbourn, filed her bill or petition in said court, seeking to have the said will declared void. Said cause was numbered 1,188 on the docket of said court. A demurrer being sustained to said petition, and the same dismissed, Mrs. Blackbourn appealed the cause to this court, where the said will was held to be inoperative and invalid as to that .part devising real estate to said institution, but valid, and to be upheld, as to the bequest of personalty, and to that extent the decree of the court below was erroneous, and was reversed, the demurrer overruled and the cause remanded. 72 Miss. ,735.

When the cause got back to the chancery court of Tate county, the parties to the controversy, represented by their respective solicitors, formulated a decree to be presented to the court, and consented that the same be signed by the chancellor and entered as the judgment of the court, as a consent decree, reciting that the judgment of the supreme court had settled the principles of the controversy and providing and decreeing—

1. That the devise of his lands by A. L. Blackbourn, deceased, to the Senatobia Educational Association is void.

2. Thatthe bequest by said A. L. Blackbourn of his personal property to said Senatobia Educational Association is valid.

The parties' admit that the complainant, Sarah Blackbourn, is the sole heir at law of A. L. Blackbourn, deceased, wherefore, by consent of parties, it is ordered] adjudged and decreed as follows:

“1. That the complainant’s petition be dismissed as to the personal property of said A. L. Blackbourn, deceased.

‘ ‘ 2. That complainant, Sarah Blackbourn, recover all the lands owned by said A. L. Blackbourn at his death, and that the said A. L. Blackbourn died seized and possessed of the following lands, . . . describing them.

‘ ‘ 3. That B. A. Tucker, executor of said A. L. Blackbourn, deceased, pay the said Sarah Blackbourn the net rents received by him from said lands for the years 1894 and 1895, which it is admitted amount to one thousand dollars ($1,000), and for which he will, as executor, be allowed credit in his account and settlement.

‘ ‘ é. That of the avails of the personal effects and money of said decedent the said executor now pay to said Senatobia Educational Association nine thousand dollars ($9,000), and to Mrs. Sarah Blackbourn two hundred dollars ($200), and that the residue of said avails are adjudged to belong to said Senatobia Educational Association, subject to all proper costs and allowances and expenses which tnay be awarded by the court in due course of administration. ’ ’

And that each party pay half the cost.

This decree was signed by the chancellor September é, 1895, which decree is in evidence in this case.

On September 7, 1896, Mrs. Sarah Blackbourn filed her petition, praying for one year’s support to be allowed her and set aside to her, estimating the same at $1,000, and objecting to the approval of the final account and discharge of the executor until that is done.

The Senatobia Educational Association answered said petition, alleging that said year’s allowance was settled for in the consent decree of September, 1895.

It appears that there were no provisions or other property on hand from which the year’s support could be taken when said consent decree was entered, but that the allowance must be in money, if at all. It appears from said consent decree that Mrs. Blackbourn, knowing then that there was only money in the hands of the executor, or belonging to said estate, and that she then consented, and, upon her consent, it was adjudicated, as shown by the terms of said decree, that after paying her $1,200 and the association $9,000, “ that the residue of said avails are adjudged to belong to said Senatobia Educational Association.” That was a disposition of the whole estate, as we think, except enough to pay costs, allowances, and expenses which may be incurred by the court in due course of administration, allowances, in that connection, evidently meaning allowances of commissions and whatever items that are required to be allowed by the court before payment can be made. The widow’s year’s allowance, secured to her by the statute, is not such an allowance as will be awarded by the court in due course of administration. Had it been the intention and understanding of the parties that the year’s allowance was to be reserved to her, it would have been so provided, and not obscurely dropped in with costs and expenses. So far as the record in the cause shows, the widow herself acquiesced in that view for a year after the decree was rendered, with nothing to restrain her from proceeding in the court if she regarded herself entitled to the year’s allowance.

The decree of the court below disallowing the petition of appellant for a year’s allowance, and refusing to set aside the same' to the said widow, Mrs. Sarah Blackbourn, is

Affirmed.