48 So. 2d 845 | Miss. | 1950
The question for decision herein is whether a general pecuniary legacy of $10,000 to Mrs. Viola Batte Harrington, contained in the will of Mrs. Viola E. Lake, was satisfied in whole or in part, by payments made by the testatrix to Paul B. Harrington, the husband of Mrs.
The question is grounded in this state of facts and circumstances:
Mrs. Lake executed a will June 16, 1940, embodying this provision: “It is my intention during my lifetime to give to Mrs. Viola Batte Harrington a home, or the money with which to buy or build a home. If, and only if, I have not done this during my lifetime, I give and devise to the said Mrs. Viola Batte Harrington the sum of $10,000.00 in cash and direct my Executors to pay the same over to her. In event of the death of Mrs. Viola Batte Harrington prior to the paying over of this money to her by my Executors, the legacy in her favor not to lapse, but to go to the legal issue of her body, if any, and if none, then it is to lapse and is to go into the trust fund known as The Lake Memorial Library Fund, provided in Item VI of this will.”
On January 22, 1944, she executed another will, expressly revoking all other wills theretofore made by her, which contained the same provision. Mrs. Lake departed this life June 14, 1947. The 1944 will was duly admitted to probate in Hinds County, Mississippi.
Between the making of the two^ wills, and beginning on September 30,1940, and ending January 14, 1941, Mrs. Lake paid, by five' checks, to Paul B. .Harrington the total sum of $7,300. The executor says these payments satisfied, in entirety or pro tanto, the legacy to Mrs. Harrington. As stated, the chancellor held otherwise.
This is the background: Mrs. Lake’s husband died in 1912. They had been resident citizens of Jackson, Mississippi, many years prior thereto, and she continued to be such citizen until her death. Mrs. Lake was left a large estate and she preserved and added to it, so that at the time of her death her personal property aggregated nearly a half million dollars. The record does not disclose the value of her real estate. She did not marry
The Harringtons did not know Mrs. Lake had a will, and, of course, knew nothing' of a provision in favor of Mrs. Harrington, nor did Mrs. Lake, during the time of making these payments to Mr. Harrington and during the construction of the house, mention to either anything about a will.
The Harringtons moved to their new home. The relation between them and Mrs. Lake continued the same as before. They, with their children, very frequently visited in the Lake home, and they often came for Mrs. Lake and carried her to their home.
In January 1944, Mrs. Lake decided to make four changes in her will. One as to the trustee. In the 1940 will she had nominated Mr. Vaughn Watkins, Sr., an able and trusted attorney, as trustee. He died January 6, 1944. She then designated a local bank as trustee. In the first instrument she named Robert E. Lake both executor and trustee. The last will made him executor only. She changed the name of a school for the support of which she had provided a large fund, and, fourthly, she greatly enlarged the authority and powers of the trustees of a library fund created by both wills. She called to her home Mr. Vaughn Watkins, Jr., a prominent attorney of Jackson, and son of Vaughn Watkins, Sr. She carefully explained to him she wanted to make a new will containing the outlined changes. Mr. Watkins made note of the desired changes. He took the old will to his office and wrote the new will. He then carried the new will to her home. There, in the presence of Robert. Lake and the two subscribing witnesses to' the will, he, according to his evidence, read slowly, carefully and distinctly to Mrs. Lake the new will, including the legacy to Mrs. Harrington. All admit Mrs. Lake thoroughly under
Was the learned chancellor justified in his conclusion that the payments by Mrs. Lake in aid of the construction of the Paul Harrington residence did not constitute satisfaction of the legacy provided for Mrs. Harrington in the will of 1944? We think so, and, while the record does not disclose the grounds upon which he decided the question, we can conceive of a number of sufficient reasons bringing’ him to that conclusion.
In the first place, the general rule seems universal that legacies can be adeemed only by events occurring subsequent to their creation. Page on Wills, Lifetime Edition, Vol. 4, Sections 1513, 1533 and 1534;
Again, Whether a gift to a legatee operates as an ademption by payment is primarily a matter of actual intent of the testator. In re Wantz’ Estate, 137 Neb. 307, 289 N. W. 363; Ellard v. Ferris, 91 Ohio St. 339, 110 N. E. 476. Mrs. Lake well knew, of course, when she executed the 1944 will that she had made these payments to Mr. Harrington. She also' was thoroughly conscious of the fact she was providing for the legacy to
Also, it is noted the legacy was to Mrs. Harrington and the payments to Mr. Harrington. While such payments may constitute an ademption under some circumstances, In re Estate of Smith, 210 Iowa 563, 231 N. W. 468; Grogan v. Ashe, 156 N. C. 286, 72 S. E. 372, the fact of payment to a third person has much less weight in establishing that fact than payment to the named legatee.
It is noteworthy that at no time covered by the period of the payments and the construction of the residence, nor at any other time, did Mrs. Lake mention to the Harringtons the fact she had provided for this legacy in either will. Had she intended the payments to be in satisfaction of the legacy she certainly would have taken a receipt therefor, so stating, or would have eliminated the legacy from her last will.
Too, she well might have thought of contingencies under which the constructed house might not have been the home of Mrs. Harrington, who held no title thereto.
Further, it is observed that this legacy was not only to Mrs. Harrington but also to “the legal issue of her body” in case Mrs. Harrington died before receiving it. This had reference to the two Harrington children whom Mrs. Lake loved so dearly. This could have been an important factor bearing upon the intent of Mrs. Lake to keep alive this legacy in her last will.
But appellant argues that oral proof was made by two witnesses to the effect that at different times Mrs. Lake, in conversation with these witnesses, indicated she intended these payments in satisfaction of the legacy to Mrs. Harrington. It is not claimed that any of these remarks by Mrs. Lake were made in the course of making
Miss Jean McKenzie MacGrillivary testified that in the spring of 1940 Mrs. Lake, in a conversation with the witness, referred to the purchase of the lot, and Mrs. Lake regretted the lot was located so far from her home, and, in reply to an inquiry by the witness, Mrs. Lake said she had promised Mrs. Harrington a house and was going to build it; that she had wanted the Harrington family to be closer to her. She also testified she carried Mrs. Lake a number of times to the Harrington home to birthday parties for the children. On one such trip Mrs. Lake said, “I built that house for Baby”. Witness said Mrs. Lake never mentioned to her a will. The force of this testimony is weakened, when all the witness said is weighed, by the uncertainty as to exactly what was said and the implication which can be drawn therefrom. For instance, the witness used this expression “She said something about promising — I couldn’t tell you "the exact words she said, but she said something about building a home for her close ’ ’, which might indicate the existence of a continuing desire and hope on the part of Mrs. Lake that the Harringtons would some day have a home closer to her, which she would construct for Mrs. Harrington. But these conversations were prior to the execution of the 1944 will. Regardless of the intent of Mrs. Lake when these conversations were had they constituted no barrier to her later making the provision for Mrs. Harrington which she did make in the will of 1944.
Mr. Robert Lake, appellant, was the other witness. He was a bachelor and seems to have lived in the Lake home since 1896. The pertinent'part of his direct testimony is that Mrs. Lake said to him at different times she had built a home for “Baby”. He could not give the dates, or the approximate dates, of these conversations.
In addition, it is shown that Mr. Lake was one of the executors and trustees in the first will. He was present when it was executed'. He knew its contents. He knew of the legacy to Mrs. Harrington. He was made a trustee in the last will. He was present when it was read over to Mrs. Lake. He knew it contained the legacy to Mrs. Harrington. He then knew of the prior payments Mrs. Lake had made on the house, yet, with full knowledge of all of these facts, he never said a word about the
Evaluating, but not passing upon the competency of, this oral proof it fell far short of proving that when Mrs. Lake made the payments on the house, or when she executed the will in 1944, she intended such payments to be in satisfaction of the legacy in favor of Mrs. Harrington, assuming ademption of the legacy could legally result from events occurring prior to its creation. These oral statements of the testatrix, admitted without objection as not being part of the adeeming acts themselves, constituted evidence to be weighed by the chancellor along with the other facts and circumstances bearing upon the issue of ademption. We think his conclusion is not only justified but it is difficult to perceive how he could have found otherwise on this record.
Affirmed.