Edwards v. Kelly, 83 Miss. 144

Edwards v. Kelly

83 Miss. 144 | Miss. | 1903

Whitfield, C. J.,

delivered the opinion of the court.

None of the statutes of limitation invoked in this case have any application to the case made by the facts. See Peebles v. Acker, 70 Miss., 356, 12 South., 248; Bell v. Rudolph, 70 Miss., 234, 12 South., 153; Cooper v. Cooper, 61 Miss., 676.

*151After Mr. Kelly married again, Edwards’ wife became at once entitled to ber distributive share in the estate left by her mother. There was no way in which the amount of this distributive share could possibly be known until Kelly, as executor, had filed his final account, showing what such distributive share amounted to. Mrs. Edwards could not sue as distributee until such final account showing her distributive share had been allowed. Section 2095, Code 1880, does not uphold Kelly’s appointment as testamentary guardianthe will having been executed in August, 1889, and Mrs. Kelly having died November 29, 1890. The effort in this will to make him such is therefore nugatory. The decree of Chancellor G-raham in March, 1893, did nothing more than admit to probate the will, and order the issuance of letters testamentary to C. 0. Kelly, dispensing with an appraisement and inventory of the goods, chattels, and personal estate of Laura Y. Kelly, deceased. Counsel for appellee is mistaken in supposing that this decree recognized Kelly as testamentary guardian, or in any way noticed the effort by the will to make him such. It is not a case of collateral attack upon a testamentary guardian recognized by the chancery court. It is simply the case of a void effort on the part of a wife to appoint a testametary guardian. Gregory v. Field, 63 Miss., 323, simply holds that a testamentary guardian derives his authority from the will making him such, and that, if he accepts the trust, he is bound to account; but the effort to create Kelly testamentary guardian being void, there was no trust to accept. And so it follows from this fact that § 2738 of the Code of 1892 has no applicaton, since Kelly never was testamentary guardian.

[Responding to the request of counsel on both sides, joined in by the learned chancellor below, that we should construe the meaning of the word “between” in that clause of the will reading as follows: “At the death of either of us the title both legal and equitable and all the property of the one first dying shall vest in the survivor in fee simple, unless the survivor shall, *152again marry; in such event all of tbe property and proceeds thereof,, if any there be, in the hands or possession at the time of said survivor’s second marriage, which inured to his or her benefit by virtue of the death of the other and this our last will and testament, is to be divided equally between the said survivor and our children, or their heirs, if any there be” — we say that the contention of the appellee that the word “between” must be construed to mean between two classes, as a result of which the father, as one class would take one-half of the estate, and the children, as the other class, would take the other half, is not sound. In other words, “between,” it is said, must have its strict etymological signification, “between two,” and that it should not be given the meaning of “among.” “Between,” it is said, is proper if you are speaking of two between whom the division is to be made; “among” being the proper word to use if a division .is to be had between more than two. We1 think it is perfectly obvious from the whole context of the clause and of the entire will that the word “between” here is used in the sense of “among.” The decisions show innumerable instances of the interchangeable use of the words. See Lord v. Moore, 20 Conn., 122; Ward v. Tompkins, 30 N. J. Eq., 3; and Senger v. Senger’s Ex’r, 81 Va., 687, where the court say: “But when they follow the verb ‘divide’ their general signification is very similar, and in popular use they are considered synonymous, though ‘among’ denotes a collection, and is never followed by two of any sort, whilst ‘between’ may be followed by any plural number, and seems to denote rather the individuals of the class, than the class itself generically.” In Hick’s Estate, 134 Pa., 508, 19 Atl., 105, the court said: “It is now contended by the widow that her late husband intended his estate to be divided into two equal shares, she being entitled to one share, and the remainder to be equally divided between his two daughters, and that such an intention is shown by the use of the preposition ‘between,’ which can only be properly construed by giving it its correct and accurate signification, *153and, as it applies properly only to tbe case of two parties, two objects, two points, or two classes, we must conclude that tbe testator’s meaning was thus to divide bis estate between bis wife and two daughters; tbe former taking one share, and tbe latter another share. But we do not think such was bis intention. If testator bad used tbe common preposition, ‘amongst,’ it is conceded there would be no room for argument. And it needs no illustration to show tbe frequent and familiar use of tbe word ‘between,’ even by well-educated and otherwise accurate linguists, when ‘among’ is intended.”

We are, therefore, of tbe opinion that tbe father, Kelly, takes only one-fourth interest in tbe estate left by bis wife, tbe other three-fourths going to tbe three children, respectively; Mrs. Edwards’ share, under our law now, going to her husband.

Decree reversed, demurrer overruled, and case remanded for answer within sixty days from filing of the mandate in the court below.