108 So. 799 | Miss. | 1926
"State of Mississippi, County of Lauderdale.
"I, Lunsford Richardson, of the county of Lauderdale and state of Mississippi, being of sound and disposing mind, memory and understanding, do make, publish and declare this my last will and testament, revoking any and all previous wills and codicils made by me, and expressly revoking the will made by me dated April 9, 1910, and witnessed by John E. Wright, and Gabe Jacobson, and also expressly revoking the will made by me dated May 29, 1915, and witnessed by E.B. McRaven and H.L.K. Barnes, and also expressly revoking the will made by me dated June 12, 1915, and witnessed by Paul Brown and Joel Buntin.
"Item 1. I desire that all of my just debts be paid out of my estate.
"Item 2. I desire that I be given a suitable burial and that a tombstone be purchased from the funds of *434 my estate and placed on my grave, the cost of the tombstone and the proper fixing up of the grave to be left to the discretion and judgment of my executor hereinafter appointed.
"Item 3. I devise and bequeath all of the property estate and effects of every kind and character of which I may die be seized and possessed as follows, to wit:
"Item 4. I give and bequeath to my beloved wife, Duan Richardson, all of my household property and effects and my homestead situated in the northwest quarter (N.W. 1/4) of the southeast quarter (S.E. 1/4) of the southwest quarter (S.W. 1/4) of section thirty-one (31) township seven (7) north of range sixteen east (N.R. 16 E.) in Lauderdale county, state of Mississippi, containing one and one-half (1 1/2) acres more or less, for and during her natural life, with power to sell and dispose of the same as she may see fit; but in such event the proceeds are to be placed in the corpus of my estate subject to the provisions hereinafter specified, and should she not sell the same during her lifetime, then at her death the said property shall revert to my estate and be disposed of as is hereinafter provided for in the case of the residue of my estate.
"Item 5. I desire that my executor hereinafter appointed first take care of the provisions hereinbefore mentioned and after so doing then I hereby expressly direct my executor to sell as soon as can be done without too great a loss, at public or private sale, separately or otherwise, as he may deem best, all of the residue of my estate, and I hereby expressly empower him to execute the deeds thereto to the purchaser or purchasers as fully as I could if alive. And after so doing then to distribute the proceeds in six equal parts as follows, to-wit:
"To my wife, Duan Richardson, one equal part in addition to the provisions made for her in item 4.
"To my son, Lee Richardson, one equal part. *435
"To my daughter, Mrs. Annie Richardson Vinson, one equal part.
"To my daughter, Mrs. Lessie Richardson Hopgood, one equal part.
"To the children of my deceased daughter, Mrs. Minnie Richardson Sharp, namely, Joe Sharp, Luther Sharp, and Leslie Sharp, one equal part which is to be divided equally between them, that is each of them is to receive one third of said part:
"To the heirs of my deceased son, Will Richardson, Myrtle Richardson, his widow one equal part which is to be divided equally between them, that is each of them is to receive one-half of said part.
"Item 6. Should there be any sum remaining undistributed after all of the foregoing provisions of this will have been fully complied with, then I desire that said sum, whatever it may be, be given to my wife, Duan Richardson, in addition to the provisions already made for her.
"Item 7. I desire that my wife, Duan Richardson, claim no allowance as I have made ample provisions for her heretofore in this will, and as she has a separate estate.
"Item. 8. I hereby constitute and appoint J.E. Reed of Meridian, Mississippi, to be the sole executor of this my last will and testament, and I do expressly relieve him from giving any bond whatsoever as such, and I also do expressly relieve him from making and filing any inventory of my estate, and I also do expressly relieve him from having any appraisement of my estate made and filed.
"Witness my signature this 18th day of February, 1916.
"L. RICHARDSON."
At the time of the death of the testator he had fifty-one dollars and thirty-eight cents in the bank, and also held promissory notes on which there was a balance due of *436 two thousand six hundred twenty-two dollars and twenty-seven cents. These promissory notes were secured by a mortgage on real property. This mortgage was foreclosed some time subsequent to the death of the testator, and the proceeds therefrom is the main subject of this litigation; that is, as to whether it should be distributed under item 5, which would result in its going to the legatees named, or whether it should be distributed under item 6, which would result in the amount being given to the wife of the deceased. If we decide that the distribution ought to go under item 5, as was held by the lower court, and not that the wife is to take the proceeds under item 6 of the will, then an affirmance of the decree would result here, because the other question involved, to-wit, whether the wife, who was a life tenant of some of the real estate left by the deceased, should pay the fire insurance premium upon the property which she was to enjoy for life must be decided in the affirmative, and against the contention of the life tenant.
Therefore, we come to the main question as to whether or not the testator intended that all of his property, including money, choses in action, and all character of property, should go to the legatees named by him, or whether he intended that all of his property should go to such legatees, except his money and the two thousand six hundred twenty-two dollars and twenty-seven cents mortgage notes, which should go to his wife under item 6 of the will.
The argument is made by appellant that the language used by the testator in item 5 clearly demonstrates that he did not intend that the notes or his cash money should be included in the language "all of the residue of my estate," as used in item 5, but that the decedent intended to limit the words "all of the residue of my estate" to real property, and not to the notes or money in the bank, because, if the decedent had so intended, he would not have used this language: "I hereby expressly direct my executor to sell as soon as can be done without too great *437 a loss, at public or private sale, separately or otherwise, as he may deem best, all of the residue of my estate, and I hereby expressly empower him to execute the deeds thereto to the purchaser or purchasers as fully as I could if alive;" that the testator would not have used the words "sell . . . at public or private sale, . . . all the residue of my estate, . . . and execute the deeds thereto to the purchaser," unless he had meant the sale of property other than the notes and money in bank, because the sale of money or mortgage notes and the execution of a deed thereto are not contemplated by the ordinary mind; that the disposition of such property is not by sale and deed, but otherwise, and, that being true, it was clearly intended by the testator that this character of property was to be excluded from the "residue of my estate;" and that the manifest intent of the testator will control in the construction of the will, even though it be contrary to the well-known meaning of the technical term used, "residue of my estate;" that, unless this construction is adopted, then item 6 of the will is meaningless, because there would be nothing left to go to the wife under that provision.
We have reached the conclusion that the construction placed upon the will by the chancellor is correct. The language of the testator in item 5, that is, that "all the residue of my estate" is to be understood in its usual and technical sense, and covers all of the remaining property of the deceased, that the decedent requested the sale of the residue, including the notes and money in bank, and that a deed be executed to the purchaser, instead of adopting the usual language with reference to the disposition of money or notes, is not sufficient, in our opinion, to restrict or overcome the well-known meaning of the term "residue of my estate." It may have been that the decedent had in mind that all of his property would be sold that ought to be sold, and, after it was reduced to money, that it would be added to the other money on hand, or that the money would be collected *438 on the mortgage notes and distributed to the legatees named in item 5 of the will. This is just as probably true as the other theory presented by the appellant, and we will not construe the item of the will so as to overcome the technical and well-known meaning of the term "residue of my estate," unless it is plain and manifest that the decedent intended to do so.
As to the meaninglessness of item 6 of the will, we do not consider this fact, if it be a fact, sufficient to overcome the accepted meaning of the term "residue of my estate." The decedent may have had in mind some other property that might possibly come to his estate at some future time. This cannot be known, but it is apparent to us that, if the testator had intended that the mortgage notes and the cash money should not have been included in the term "residue of my estate," he could have easily said so by excepting this class of property from the remainder of the estate, but he did not do this, and we therefore think he intended what his language expresses.
In view of these conclusions, the decree of the lower court will be affirmed.
Affirmed.
ANDERSON, J., dissents.
