Courtenay v. Courtenay

43 So. 68 | Miss. | 1907

Mayes, J.,

delivered the opinion of the court.

So well settled are the principles governing the construction of wills that we deem it unnecessary to enter upon any discussion of this subject. The question is, what was the intention of the testator in the will offered for construction ? There was, undoubtedly, a trust created by the will of the testator in the property devised to Justine Courtenay; but it was limited as to the time in which it should exist, and definite in the purposes it was intended to accomplish. The trust expired after the children had reached their majority, and the purpose of the trust was to apply the proceeds of the property to the support of Mrs. Courtenay and her children and additionally the payment of debts. It is also certain that the testator intended that there should be no sale or mortgage of any of the real estate during the minority of the children. After this had been accomplished the property then became absolutely the property of Justine Courtenay. The will provides that all the property, both real and, personal, shall be bequeathed to the wife of the testator, Justine Courtenay. It then provides that the proceeds shall be appropriated to the support of her and her children and the payment of the testator’s debts. It then provides that there shall be no sale or mortgage of any of the real estate during the minority of the testator’s children, ’concluding in the following language: “After which time, my wife shall be at liberty to make such disposition of the property here bequeathed as she may deem proper for the use and benefit of my children.” It will thus be seen that, after the children should have attained their majority and the trust imposed should have been accomplished, no further restriction was placed upon the power of the wife to dispose of the property as she might deem proper for the use and benefit of the children. By this language no obligation was imposed upon Mrs. Courtenay to sell or dispose of any of the property for the benefit of the children; but she might have done so if she deemed it proper. It is not every precatory expression contained in a will which creates a trust; but it is only such expression in the will as clearly shows the testator intended should govern the conduct of the party to whom it is addressed. It is manifest, upon reading this will, that it was not the intention of the testator that this expression should control and govern the conduct of Mrs. Courtenay with reference to what she should do with the property after the children had attained their majority; but it was simply meant to give her the power, in her discretion, if she deemed proper, to help her children. It lifted the restriction which theretofore had been imposed upon her, prohibiting a sale or mortgage of the property, and gave her the power, if she saw fit, to sell or dispose of the property for the benefit of the children. But an absolute title became vested in her after the children became of age.

A lengthy discussion on this subject will be found in Harrison v. Harrison’s Admr. (Va.), 44 Am. Dec., 372, note. In Foose v. Whitmore (N. Y.), 37 Am. Rep., 573, citing the case of Bernard v. Minshull, Johns., Ch. 276, and in Howarth v. Duell, 6 Jur. (N. S.), 1360, it was held: “A devise by a testator of all the residue of his property, real and personal, to his wife, with power to dispose of the same among all his- children in her discretion,” was held to be an absolute gift to the wife. In the case of Hutchinson v. Tenant, L. R. 8 Ch. Div. 540, where a testator gave all his property to his wife “absolutely, with full power for her to dispose of the same for the benefit of my family, having full confidence she will do so,” it was held that the widow took absolutely. In Post v. Moore (N. Y.), 73 N. E. 482, 106 Am. St. Rep., 508, in note, will be found a lengthy discussion drawing the distinction between precatory and discretionary trusts, citing many cases. In Boyle v. Boyle (Pa.), 25 Atl., 494, 34 Am. St. Rep., 629, where a' will provided as follows: “I give and bequeath to my wife all my property, real and personal, for her support during her natural lifetime. Any remainder at her decease to be disposed of by her as she may think just and right among my children” — it was held under this will that the wife took a foe in the property, with the power to sell and devise same. The court stated in this case that the intention of a testator to create a trust must be apparent upon the face of the will. In this case there are many cases cited illustrative of the case under consideration. In Collister v. Fassitt (N. Y.), 57 N. E., 490, 79 Am. St. Rep., 586, in the opinion of the court, on p. 590 of 19 Am. St. Rep.,’will be found a citation of many cases sustaining our view of the construction given to this will. Thus, in the case of Clarke v. Leupp, 88 N. Y., 228, the testator gave all his property to his wife, closing with the words: “And do appoint my wife my true and lawful attorney and sole administratrix of this my will, to take charge of my property after my death, and to retain or dispose of the same for the benefit of herself and children.” It was held that the widow took an absolute title and that the succeeding words did not limit the gift. To the same effect is the case of Lawrence v. Cooke, 104 N. Y., 632, 11 N. E. 144.

There is nothing in this will which indicates any purpose on the part of the testator that his wife and children should inherit the property in equal proportions after all of his children should attain their majority, and we think the decree of the chancellor in so holding was entirely without warrant in the will. There was no trust imposed upon Mrs. Courtenay with regard to this property which was left her after the youngest child became of age, and the property then became absolutely vested in her, and she has the right to dispose of it in any way she may deem proper, without restraint or interference from any one. The record showing that the youngest child is twenty-one years of age, she had a right to wind up her trust and take charge of the property now remaining as her own.

We think that the decree of the chancellor should he reversed on direct appeal affirmed on cross-appeal, and the cross-bills dismissed, and a decree entered here declaring this property to be the property of Justine Courtenay.