181 So. 727 | Miss. | 1938
From a decree of the chancery court of Coahoma county construing the last will and testament of Martha "Mattie" Moss Johnson, deceased, this appeal is prosecuted by one of the legatees under the will, Emma Moss Byrd, who challenges the correctness of the decree rendered by the court below only in so far as such decree deals with the residuum of the estate after the payment of the specific legacies therein provided for.
In addition to making certain bequests of money to the executor named in the will, and to the Clarksdale Hospital, the Old Ladies' Home at Jackson, Mississippi, a memorial fund, and gifts to some of her servants, etc., the testatrix devised and bequeathed to a number of individuals, by name, large sums of money as follows:
"To my nieces, Mattie Moss Brown and Gwendolen Brown, . . . Ten Thousand Dollars ($10,000.00)";
"To D.J. Johnson, the brother of my deceased husband, . . . Ten Thousand Dollars ($10,000.00)," if he be then living, and if not, "to the heirs of his body, share and share alike";
"To Laura Johnson Leitch, the daughter of the above named D.H. Johnson, . . . Five Thousand Dollars ($5,000.00)";
"To my sister, Nannie Moss Brown, . . . Twenty Dollars ($20.00) per month so long as she may live";
"To my sister, Emma Moss Byrd, . . . Ten Thousand Dollars ($10,000.00)", and certain real estate;
"To R.J. Moss and his wife Ellie Haney Moss, . . . Five Thousand Dollars ($5,000.00)";
"To Virginia Moss Hilterbran . . . Five Thousand Dollars ($5,000.00)"; *508
"To Heber Jones Moss, . . . Five Thousand Dollars ($5,000.00)";
"To Floy Nash Moss, . . . Five Thousand Dollars ($5,000.00)"; and to
"H.G. Moss, . . . Five Thousand Dollars ($5,000.00)."
The will then states the reason for making these last mentioned five bequests, and refers to the legatees as "the foregoing nieces and nephews." Thereafter is contained a bequest of five thousand dollars to Louise Moss Montgomery if she be living, but if not, "to the heirs of her body share and share alike." Then there follows bequests of five thousand dollars to each of the three children (naming them) of the said Louise Moss Montgomery. The relationship of Louise Moss Montgomery and her children to the testatrix is not stated in the will, but they are shown, by the record, to be her relatives.
Immediately following these several bequests, the will contains the following provision: "If, after all my property shall have been sold and all sums owing to my estate shall have been collected, there shall be more money belonging to my estate than is herein given, devised and bequeathed, it is my desire that any excess of money belonging to my estate, over and above the aggregate of the amounts herein specifically given, devised and bequeathed, be divided equally among my relatives whose names are mentioned in this will."
The questions for decision on this appeal are: (1) Whether the gift of the residuum was to the relatives of the testatrix, individually, and not as a class; (2) whether the residuary legacy which was bequeathed Nannie Moss Brown, who pre-deceased the testatrix, lapsed, so as to descend, as property undisposed of by the will, to the appellant, Mrs. Emma Moss Byrd, as the sole surviving sister of the whole blood and heir at law of the testatrix; or whether such residuary share passed to the other residuary legatees; and (3) whether Ellie Haney Moss, the wife of a blood nephew of the *509 testatrix, was included among the legatees of the residuum of the estate bequeathed to "my relatives whose names are mentioned in this will," the said Ellie Haney Moss having been specifically named in connection with a certain legacy of five thousand dollars made "to R.J. Moss and his wife Ellie Haney Moss," and the said R.J. Moss having predeceased the testatrix.
If the first question above stated be answered in the affirmative, then the solution of the second question in favor of the appellant, Emma Moss Byrd, will necessarily follow, that is to say, if the gift of the residuum was to individuals, and not to a class, the share bequeathed to Nannie Moss Brown lapsed at the time of her death, she having predeceased the testatrix, and her share descended to the appellant as property undisposed of by the will, and not to the residuary legatees by survivorship.
If the gift is made to the beneficiaries by name, the gift is not one to a class, even if the individuals who are named possess some quality or characteristic in common. Page on Wills (2d Ed.), Section 921.
Counsel for the other residuary legatees under this will contend that the gift of the residuum of the estate was a gift to the relatives of the testatrix mentioned in the will as a class, and not as individuals, and in support of such contention rely strongly on the case of Branton v. Buckley,
Moreover, it was held in the case of Marx v. Hale,
In Re Rochester Trust S.D. Co.,
To the same effect is the holding in the case of In re Deming's Will,
In Re Gibson, 2 Johns. Hem. 656, 70 Eng. Reprint 1222, a residuary bequest was made "unto all the before mentioned pecuniary legatees (excepting servants and executors and the said Thomas Pearson as trustee for the said Joseph Pearson), and to be equally divided among them, in proportion to their respective pecuniary legacies," it was held that the gift was one to individuals, the effect being the same as though the beneficiaries had been renamed at length, the court, after indicating its decision, saying: "With the exception of Knight v. Gould [2 Myl. K. 295] I know of no case where a bequest to persons referred to in the will by the terms `hereinbefore named,' or `hereinafter named,' or by the words `hereinbefore mentioned,' or `hereinafter mentioned,' has been held to be a bequest to those persons as a class."
In Re Huddy's Estate,
When a gift is to members of a class, such class is subject to be opened up to let in members thereof, if any, who may afterwards come into existence before the date for the ascertainment of the members of the class. But a gift to "my relatives named in the will" is not subject to such a contingency, and is one to the individuals named, with no right of survivorship among them.
We are, therefore, of the opinion that it is clear under the authorities that the gift of the residuum was to the legatees named in the will as individuals, where, in disposing of the residuum, the testatrix specified that the same was to "be divided equally among my relatives whose names are mentioned in this will" to the same extent that it would have been a gift to individuals had their names been repeated in the residuary clause. That the gift of the residuum cannot be legally interpreted as being one made to a class, with the right of survivorship among the members thereof as joint tenants, becomes still more apparent when we consider the fact that the testatrix provided in her will that the specific legacies bequeathed to D.H. Johnson and Mrs. Louise Moss Montgomery, respectively, should pass to the heirs of the body of such legatees instead of surviving to the other named beneficiaries under the will; and from which it might reasonably be assumed that a like intention existed as to their respective shares in the residuum.
Passing now to the question as to whether or not the portion of the residuum bequeathed to Nannie Moss Brown, who predeceased the testatrix, lapsed at the time of her death and descended to the appellant as the sole surviving relative of the whole blood of the testatrix as heir at law, and did not survive to the other residuary legatees, we find that, with the exception of cases in Indiana and the case of Corbett v. Skaggs,
It is stated in 28 R.C.L. 338, 339, Section 331: ". . . Lapsed or ineffectual legacies or devises or a portion of the residuary estate itself, where the residuary clause is to several devisees or legatees in common, do not inure to the benefit of the remaining residuary legatees or devisees, but the interest of the deceased becomes intestate estate, and as such passes to the next of kin or heirs at law of the testator. Therefore when one of the residuary legatees or devisees dies during the lifetime of the testator his share will not go to the survivors but will lapse and pass under the intestate laws. It cannot fall into the residue, because it is itself a part of the residue. This rule also applies where specific legatees and residuary ones are the same persons taking under a will containing a general residuary clause. The portion of one dying does not survive to his co-legatees, but goes to the next of kin according to the statute of distribution."
Section 2315, 69 C.J., p. 1079, reads as follows: "The property goes to heirs or next of kin of the testator, as in cases of intestacy, where a residuary bequest or devise lapses or is void." Again, in Section 2316, 69 C.J., p. 1080, it is said "Although there is authority to the contrary, the general rule is that where a residuary gift to *515 several persons lapses or, is void as to one, his share goes to the testator's heirs or next of kin, and does not increase the shares of the other residuary beneficiaries."
It is argued, however, on behalf of the other residuary legatees that a lapsed devise or bequest of personal property does not descend to an heir at law as property undisposed of by will, but passes into the residuum, citing the case of Hamberlin et al. v. Terry, Adm'r, Smedes M. Ch. 589; Morris v. Henderson,
Again, it is urged that it would defeat the will of the testatrix to permit the lapsed portion of the residuum which was bequeathed to Nannie Moss Brown, to descend to the heir at law instead of passing to the other residuary legatees named in the will. However, as was said in the case of George Washington University v. Riggs National Bank, 66 App. D.C. 389,
The third question raised by the appeal, as hereinbefore stated, is whether the provision in the will devising and bequeathing the residuum of the estate to "be divided equally among my relatives whose names are mentioned in this will", resulting in the lapse of the share thereof at the time of the death of R.J. Moss, who predeceased the testatrix, which is now claimed by his wife, Ellie Haney Moss, appellee here. The court below held that the specific legacy of five thousand dollars given to R.J. Moss and his wife, Ellie Haney Moss, was an undivisible legacy and survived in its entirety to his wife at the time of his death. No appeal is taken from that portion of the decree; but it is contended by the appellant that a share in the residuum was bequeathed only to the said R.J. Moss, and that the same lapsed at his death and descended at the death of the testatrix to the appellant as her sole surviving sister of the whole blood and heir at law. The ground of this contention is that Ellie Haney Moss was not a relative of the testatrix within the meaning of the clause of the will, which provided *517 that the residuum should "be divided equally among my relatives whose names are mentioned in this will." In support of this contention, appellant quotes from Webster's International Dictionary (2 Ed.), defining relationship by affinity to be "relationship by marriage between a husband and his wife's blood relations or between a wife and her husband's blood relations", and from 1 Bouv. Law Dict., Rawle (3 Rev.), p. 159, as "the connection existing, on consequence of marriage, between each of the married persons and the kindred of the other;" and from which definitions the appellant argues that since the appellee, Ellie Haney Moss, was not a blood relative of the deceased husband of the testatrix, she is not related by affinity to the testatrix.
But we are of the opinion that this reasoning does not go far enough. Ellie Haney Moss married a blood nephew of the testatrix. The testatrix being one of the blood relatives of the husband of Ellie Haney Moss, it follows from the foregoing definition that she, being related, by affinity, to her husband's blood relatives, was related to the testatrix. If the contention of the appellant was adopted, we would have the anomalous situation of the testatrix being a relative of Ellie Haney Moss without her being a relative of the testatrix. We do not think the testatrix intended such a refined distinction when she referred to "my relatives whose names are mentioned in this will". We are, therefore, of the opinion that the appellee, Ellie Haney Moss, was entitled to one residuary share of the estate when divided equally among the relatives of the testatrix, counting the indivisible portion which would have gone to the said appellee and her husband as one share if he had likewise survived the testatrix. She was a relative, as well as a joint tenant, as to the specific legacy and the residuary share. The court below so held, and the decree in that respect must be affirmed.
The decree must be reversed in so far as the share bequeathed *518 to Nannie Moss Brown in the residuum was held to have survived to the other residuary legatees, instead of the appellant, Emma Moss Byrd, as heir at law of the testatrix.
Affirmed in part; reversed in part, and remanded.