Marx v. Hale

95 So. 441 | Miss. | 1922

Sykes, J.,

delivered the opinion of the court.

For the third time this case is here on appeal. Wé are now called upon to construe the will and codicil of Charles A. Neilson. This will and codicil are set out in full in the first appeal of this case. Hale v. Neilson, 112 Miss. 291, 72 So. 1011. The record here shows that the codicil was duly signed and published upon the same day as the will. It is also admitted that the sisters of the testator, Mrs. Annie F. Symons and Mrs. Catherine C. Hopkins, predeceased the testator. These two sisters were devised and bequeathed certain portions of testator’s real and personal property in items 4 and 5 of the will. The appellants here, complainants in the chancery court, claim to be the owners of those portions of the property devised and bequeathed to Mrs. S'ymons and Mrs. Hopkins under these two items of the will. They claim that these are lapsed legacies and devises because of the death of these two sisters before that of the testator; that since the testator left no children, the widow inherited under our laws of descent and distribution in fee simple the portions of these lapsed legacies and devises. Some of the complainants also claim a different share of the property under the will, in case the widow did not inherit the lapsed legacies. It is, however, unnecessary to state in full this claim.

The appellees contend that the dominant purpose of the will as shown by its terms was that the wife of testator was to have only a life estate in the property, and that the remainder is therein given to his nieces and nephews and John W. Johnson, all of whom are mentioned in items 4 and 5 of the will qualified by item 2 of the codicil, which gives Johnson an equal share with the representatives of the brothers and sisters mentioned in these items, and that the lapsed legacies of the devises to Mrs. Symons and Mrs. Hopkins, either go under the will to their heirs, or to the nieces and nephews mentioned in these items. They contend further that the former adjudications of this court have held that these lapsed devises passed under the will and that these portions Avere not inherited by the widow under our statute of descent and distribution, or, in other words, that this question is res adjudicaba.

We will first consider the question as to whether or not this court in former considerations of this case has decided this question.

In the first report of the case mentioned above, the question there presented to the court was whether or not under this will the widow, Mrs. Julia A. Neilson, took a life estate in all property, or one in fee. There the court, after examining the will in full, held that it was the intention of the testator to give his wife a life estate, with remainder to his sisters, nieces and nephews; that by this will he intended to^dispose of his entire estate. In that case the complainants (the present appellants) were claiming the entire estate as heirs at law of the wife. Their claim was that she was given an estate in fee under the will. In other words, the sole question decided by the court in that case was that by the terms of the will the wife only received a life estate. The court in no wise attempted to deal with the tAvo lapsed devises and bequests to these two sisters, but only dealt Avith the estate devised and bequeathed to the Avife under the will. In this opinion the court sua sponte dismissed the bill without prejudice to the right of the appellees there (appellants here) to request that the cause be remanded for the purpose of having the bill amended, if desired. This request was made, and one of the reasons given therefor was the suggestion that the widow inherited the property devised in the will to these two sisters and that complainants were the heirs at law of the widoAv. In Hale v. Neilson, 113 Miss, on page 30, 73 So. on page 865, the motion to remand is sustained and the cause remanded “in order that the bill may be amended generally, and intimate no opinion on the question whether there is a lapsed devise, or as to the rights of the present appellees as between themselves. No such issues were properly presented by the bill as it is now written.” In these two opinions the court in no way passed upon this question.

Upon remand the bill Avas amended to properly present this question. A demurrer was sustained to the bill and the Avill construed by the chancellor. An appeal Avas then prosecuted to this court, and the case is reported under the name of Marx v. Hale, 119 Miss. 410, 81 So. 119. In this opinion it is stated that — “The codicil is not dated, and it may be that the codicil Avas Avritten after the death of . . . Mrs. Symons and Mrs. Hopkins. The bill does not allege the date or circumstances existing at the time of the writing of the codicil, nor does it allege who are the proper heirs at law of Charles A. Neilson, deceased, if all of the brothers and sisters of said Neilson predeceased him. In the absence of these necessary parties and necessary averments, Ave think it would be improper to enter upon a definite construction of the will and codicil.”

It is then stated that the chancellor Avas right in sustaining a demurrer to the bill but erred in construing the will. Thé bill was then dismissed without prejudice to the rights of the parties to file a proper bill making all parties interested parties to the bill.

From a careful consideration of this opinion it Avill be noted that the court Avas of the opinion that all necessary parties were not before it for a construction of the Avill; that the allegations of the bill were too vague and indefinite with reference to the time of the execution of the codicil. Nothing ivas decided except that these allegations were insufficient to maintain the bill. The will was not construed. Therefore, necessarily the court did not consider the material items of the will and of the codicil nor whether or not there were lapsed devises, nor to whom these items went.

The present bill sIioavs that the will and codicil were executed at the same time, and alleges the other facts, and malíes all parties to this suit in accordance Avith the suggestion of the last opinion of the court. This opinion does not decide to whom these items Avent, either under the will or according to the law of descent and distribution.

Consequently, this question has not been decided by this court in any of these opinions.

It is held in the first opinion in 112 Miss. 291, 72 So. 1011, that the testator in this Avill intended to devise and bequeath all of his property. This is true, and in this will he did so. But before his death these íavo sisters had died. In fact, they died several years before he did. Consequently, for many years he kneAV that these legacies and devises had lapsed, and he made no further provision with reference thereto.

It is contended by counsel for appellee that considering together items 4 and 5 of the will and item 2 of the codicil, these bequests and devises are to a class and not to individuals, and that either those of the class living at the time of the death of the testator take the estate under the Avill, or the heirs of the devisees dead take their shares. It is not necessary to decide Avho would take this property under the Avill if left to a class, or whether or not it would still be property not disposed of by the will, for the reason that these items do not bear this construction, but the devises are expressly to individuals, each individual being named and the exact portion of the estate he is to take. Item 4 and item 5 together expressly give to each of these sisters one-fifth by name, to one niece and one nephew one-fifth, and to the two Covingtons each one-half of one-fifth. From a consideration of the entire record we know that these nieces and nephews are the children of either brothers or sisters of the testator, and that the share allotted each child was arrived at by what he would have given its father or mother had he substituted parents for children. In other words, Annie Little and Walker Neilson were the only children of their respective parents, while the two Covingtons represented one parent, so that the share of the Covingtons together was equal to. the share each of Little and Neilson. This method of arriving at the part he would give each child, however, does not change these from individual bequests to that of a class, because each individual is named and the exact proportion given him is expressed. Item 2 of the codicil merely gives Johnson a share equal to that given each sister, Annie Little, Walker Neilson, and the two Covingtons combined. In other words, it adds another beneficiary to items 4 and 5 of the will who is to take an equal part with these beneficiaries, that part being equal to that given each sister, Annie Little, Walker Neilson, and the combined share given the two Covingtons. It makes these beneficiaries, except the two Covingtons, have one-sixth instead of one-fifth of this property.

A gift to a class is typically illustrated by the case of Branton v. Buckley, 99 Miss. 116, 54 So. 850, L. R. A. 1917C, 527. It is therein stated that a gift to a class is “a gift to a number of persons not individually named, but all answering a general description.” To like effect is the case Matter of King, 200 N. Y. 189, 93 N. E. 484, 34 L. R. A. (N. S.) 945, 21 Ann. Cas. 412; 1 Jarman on Wills (6th Ed.), 232; 40 Cyc. 1473.

The converse of this rule is well stated in the case of Cruse v. Howell, 4 Drew, 217, as follows: “If there is a bequest to certain persons nominatim, or so described as to be fixed at the time of the gift so that thei'e can be no fluctuation, then, if one of them dies in the lifetime of the testator, his share lapses.”

See, also, 21 Ann. Cas. 415, and note.

It is contended by the appellee that since the wife took a life estate under the will, under section 5088. Code of 1906, section 3376, Hemingway’s Code, she did not inherit the property mentioned in these lapsed devises. This section of the Code is as follows:

“Any provision by the will of the husband or wife for the other, shall be construed to be in bar of any share of the real or personal estate of the testator, unless it be otherwise expressed in the will.”

Under our statute the widow Tvas the only heir at law of the testator. There were no children. Section 1651, Code of 1906, section 1383, Hemingway’s Code, provides that if a husband die intestate and do not leave children nor descendants of children, his widow shall be entitled to his entire estate in fee simple. Section 1654, Code of 1906, section 1386, Hemingway’s Code, provides that the estate net devised or bequeathed in the last will and testament shall descend and be distributed in the same manner as the estate of an intestate. In the case of Morris v. Henderson, 37 Miss. 507, it is held that — “If real estate ‘be specifically devised, and the devise does not take effect, either from the incompetency of the devisee to take, from a partial revocation of the will, a lapse by the death of the devisee in the lifetime of the testator, or from the contingency not happening upon which, as a condition precedent the devise was made, or was to take effect, it descends to the heir, as property undisposed of by the will.’ ”

Under similar statutes relating to the dower of a wife under the Code of 1871, it was contended that when the wife took under the will she did not inherit property of her husband not disposed of in the will. The court construing those sections held that those statutes did not apply to the case of a widow who is the sole heir of her deceased husband. Wall v. Dickens, 66 Miss. 655, 6 So. 515.

In the case of Lemon v. Rogge (Miss.), 11 So. 470, the husband gave his wife a life estate but did not dispose of the remainder. As the testator had no children, the court held that under tlie statute of descent and distribution she took the remainder as heir at law.

In the case of Rainey v. Rainey, 124 Miss. 780, 87 So. 128, it is also held that when a wife takes property under the will she also inherits the property not therein disposed of, as heir of her husband.

Since there were no other heirs of the testator, these lapsed devises were inherited by his widow, and this section of the Code in no wise affects this right. Constructions of kindred statutes -are found in the two cases of Cain v. Barnwell, 87 So. 481, and Id., 124 Miss. 860, 87 So. 484.

In conclusion, we wish to repeat that it is perfectly true that the testator meant to devise and bequeath all of the real and personal property of which he was possessed at the time he wrote the will. It is also perfectly plain that these devises were made to individuals, each being given a certain specific and definite proportion of the estate, and that in no sense are these devises or bequests made to classes or to a class; that under the law it is equally plain that where the devisee mentioned in a will predeceased the testator, there is a lapsed devise, and the property under our statute of descent and distribution is inherited by the heir at law, and that in this case the widow is the heir at law and that she inherited under this statute the two-sixths interest in this property devised to Mrs. Symons and Mrs. Hopkins, as section 5088 does not preclude her fx*om inheritixxg these interests as sole heir at law; that the appellaxxt R. T. Moore is entitled to one-half of this two-sixths interest ixxherited by the widow, or a one-sixth interest in this property, and that the other appellaxxts are the owners of the other oxxe-sixth ixxterest.

Reversed, and decree will be entered in this court ixx favor of the appellaxxts in accordance with this opinion.

Reversed.