79 So. 86 | Miss. | 1918
delivered the opinion of the court.
Mrs. Vera Bond filed a bill in the chancery court of Harrison county against the appellees, in which she alleged, in substance: That she (the appellant) is the daughter of the late W. K. M. Dukate, and that the respondent Mrs. Linda B. Dukate is his widow and the other appellees are also his children. That at the time of the death of the said W. K. M. Dukate he left what purported to be a last- will and testament. That, as a matter of fact, he died intestate, because the alleged will is null and void. That Mrs. Dukate had filed this will for probate in common form and had been appointed administratrix of it, and as administratrix Mrs. Dukate also claims to be the sole legatee and devisee. That the said W. K. M. Dukate left an estate consisting of real, personal, and mixed property of the value of about seven hundred thousand dollars. That the administratrix has collected the property and claims that she is the sole distributee of the estate; also, that she claims to be the sole legatee and devisee under the will. That she .has filed her final account as administratrix, which was approved by the court, and she and her bondsmen have been discharged. That the instrument purporting to be the last will and testament of the said Dukate is null and void and shows on its face that it was never the intention of the testator that his wife should be the sole legatee and devisee under the law. That the following language in said null and void will, to wit, “tó be used and disposed of by her for the benefit of herself and our children in the manner which is understood by herself and me, being sure that she
The relief asked for in this bill is:
That the will be declared “null and void and of no effect; and that the complainant be adjudged to own a one-sixth interest in the estate of the late W. K. M. Dukate; and, if mistaken in the relief herein sought, complainant prays for such other, further and general relief as, in equity and good conscience, she may be entitled to receive.”
A number of exhibits were filed to this bill, one of which was the will, and others relating to the administration of the estate by the administratrix. Separate demurrers to this bill were filed, one by Mrs. Linda-R. Dukate and one by the other defendants. The second ground in each of these demurrers as as follows :
“The bill shows that W. K. M. Dukate died testate and that the instrument, Exhibit A, is a valid and legal will.”
“Biloxi, Miss., March 26, 1912.
“This is my will.
“I give and bequeath to my beloved wife Linda' B. Dukate all the property real, personal and mixed of which I may die possessed, to be used and disposed of by her for the benefit of herself and our children in the manner which is understood by herself and me, being sure that she will carry out my wishes in reference to the property hereby bequeathed.
“William: K. M. Dukate.”
The bill of the appellant in this case is framed solely and alone upon the idea that the will of the late Mr. Dukate is absolutely null and void, and that his property descends to his heirs under our statutes of “descent and distribution.” In short, that he died intestate. The only question, therefore, for determinination, is whether or not the above is a valid Avill. We are not called upon to construe this will. In considering this appeal it makes no difference whether this will devises and bequeaths to Mrs. Dukate absolutely all of the property of the testator, or whether this property is beqeathed and devised to her in trust.
After a careful examination of the exhaustive briefs of counsel on both sides and the authorities cited by them, we are of the opinion that the testator devised and bequeathed this property to his wife, either absolutely in fee simple, or in trust for the benefit of herself and their children. In either event the will is valid and Arests the title to the property in Mrs. Dukate, either absolutely or as a trustee. If as a trustee, and the trust be inoperative, a trust would result in favor of all of Mrs. Dukate’s heirs under the Avill. These heirs, however, would have to claim under the will. The will disposes of the legal title to all of the property of the testator.
“Sometimes a testator distinctly shows an intention to create a trust but does not go on to denote with sufficient clearness who are to be its objects; the effect of which obviously is that the devisees or legatees in trust (whom we suppose to be distinctly pointed out) hold the property for the benefit of the person or persons on whom the law, in the absence of disposition, casts it; in other words, the gift takes effect as to the legal interests but fails as to the beneficial interests.”
Affirmed.