109 So. 2d 862 | Miss. | 1959
This case is before us on appeal by Roy M. Watson, Executor, and Lucille M. Mortimer Wiegand and Joan Mortimer Williams, devisees, defendants in the court below, from a decree of the Chancery Court of Harrison County construing the last will and testament and codicil of Mrs. Lucille B. Gillis, deceased, and also cross-appeal of Mrs. Daphne Gillis Caffery, petitioner, from that part of the decree which confirmed the appointment of said executor.
The record shows that the testatrix, Mrs. Lucille B. Gillis, died on March 7, 1957, and that her last will and testament and codicil were duly admitted to probate on March 16, 1957, and that letters testamentary were duly issued to Roy M. Watson as Executor on the same date. Marcel A. Gillis, who was named as co-executor in said will, declined the appointment and was relieved from serving by the decree of the court. The petition for the construction of the will was filed by Mrs. Daphne Gillis Caffery, a daughter of the testatrix, on May 3, 1957; and in her petition the petitioner also asked that said executor be removed, and that an administrator be appointed. The will, dated August 9, 1955 and the codicil, dated June 29, 1956, were both wholly written, dated and subscribed by the testatrix in her own hand, and are in words and figures as follows:
“I Lucille B. Gillis, a resident citizen of Biloxi, Harrison County, Mississippi, declare this to be- my last will & testament—I leave my property in Louisiana, known as Woodside Plantation, in equal division, to my three children. My son Marcell A. Gillis, my daughter Daphne Gillis Caffery and my great-granddaughter Joan Mortimer—To my daughter Daphne*228 Gillis Caffery I leave the entire contents of my home 806 W. Beach and all other personal property of which I may die possessed of to do with as she wishes—She may also occupy my home for one year after my death —It should then he sold and the proceeds, after all expenses are paid, should he divided into thirds, one third going to my grand daughter Lucile Minor Mortimer, one third to my grand daughter Joan Minor and one third to my great grand daughter Joan Mortimer.-—■
I leave one thousand dollars to my faithful housekeeper Louise Boykins—I appoint Marcel A. Gillis & Roy M. Watson my executors with siezen & without bond—
This Will is written, dated & signed by me in my home 806 W. Beach, Biloxi, Mississippi, on August 9th, 1955—
Lucille B. Gillis
First Codicil—I now wish my property in La. to go in equal division to my Son Marcel A. Gillis & my daughter Daphne Gillis Caffery, and the proceeds of the sale of my home 806 W. Beach Biloxi to go one third to my grand daughter Lucile Mortimer and two thirds to go to my great-grand-daughter Joan Mortimer—
Dated and signed by me in my home 806 W. Beach June 29th 1956—
Lucille B. Gillis”
The record shows that the estate of the testatrix consisted of personal property, including cash on hand, money on deposit in banks, bonds, a 1956 model Plymouth automobile, and household furniture and furnishings, of the total value of $24,354.72. The automobile was valued in the inventory filed by the executor at $1500.00, and the household furniture and furnishings were valued at $663.00. In addition to the above men
In her petition for construction of the will Mrs. Daphne Gillis Caffery alleged that the executor had informed her that the expenses of the administration of the estate were to be paid from the stocks and bonds belonging to the estate, which constituted a part of the personal property bequeathed to her in the will; that, if such construction were adopted for the settlement of the estate, it would have the effect of defeating the intention of the testatrix, and that, petitioner would take practically nothing under the will. The petitioner further alleged that no appraisal of the assets of the estate had been made as required by law and the order of the court, that Boy M. Watson, the Executor, had failed to furnish the petitioner a list of the personal property belonging to the estate, although she had often requested that such list be furnished; that the bond required of the executor was insufficient; and that if said Boy M. Watson should be permitted to continue to serve as executor under the will, he should be required to give bond in a sum of not less than $20,000.00. The petitioner further alleged that the said Boy M. Watson, Executor, was a nonresident of the State, and that he was holding the assets of the estate outside of the jurisdiction of the court, and for those reasons should be removed from his office as executor. The petitioner therefore asked that the said Boy M. Watson be removed as executor and that a resident of Harrison County or a trust company authorized to do business in Mississippi be appointed administrator of the estate.
The respondents incorporated in their answer a cross-bill, in which they alleged that under the applicable law, “bequests of personal property would, in any event, abate even to the extent of complete destruction thereof prior to the charging of any real estate with the payment of any debts of costs of administration and there
Only one witness was called to testify during the hearing before the chancellor. Boy M. Watson was called to testify as an adverse witness by the petitioner. Watson testified concerning the condition of the assets of the estate, and his management of the property for the testatrix during her lifetime. He stated that he was a resident of the City of New Orleans; and that he had been employed by the testatrix to manage her business affairs for her under a general power of attorney for a period of approximately twenty years. He was questioned at length concerning his management of the es-state. Parts of his testimony will be referred to later; but it is not necessary that we undertake to summarize his testimony in this opinion.
At the conclusion of the hearing the chancellor rendered a written opinion which has been made a part of the record. The chancellor was of the opinion that, by the use of the words “do with as she wishes,” the testatrix intended for Mrs. Caffery to take and have all of her personal property free of the claims of the testatrix’ debts and administration expenses, including taxes; and that by the use of the words ‘‘ after all expenses are paid, ’ ’ the testatrix intended that all expenses of the administra
The first point argued by the appellant’s attorneys as grounds for the reversal of the decree of the lower court is that the court erred in its holding that the bequest by the testatrix to her daughter, Daphne Grillis Caffery, of “the entire contents of my home 806 W. Beach and other personal property of which I may die possessed of to do with as she wishes,” included the cash and bonds of which the said testatrix died possessed, and in its holding that all expenses of the administration of the estate, including all estate and inheritance taxes, should be paid out of the proceeds of the sale of the real property referred to in the will as “my home, 806 W. Beach, Biloxi.”
The appellants’ attorneys argue that the words “personal property” as used in the will should be deemed to have been used in their restricted sense as meaning only tangible personal property owned by the deceased, as in cases where the words are intended to mean only per
We think there was no error in the court’s construction of the above mentioned provisions of the will.
In Ball v. Phelan, et al, 94 Miss., 293, 49 So. 956 (1908) the court said: “The one fundamental rule governing the construction of all wills is to ascertain what the intent of the testator was. This intent must be gathered, it is true, from the language used in the will, and by this is meant that such intention shall be gathered from the four corners of the instrument; that is to say, from the whole will—-the whole frame of the will; the whole scheme of the testator manifested by the will, taking into consideration and giving due weight to every word in the will; and, when once the actual intent of the testator at the time of the making of the will has been in this way ascertained, all minor, subordinate, and technical rules of construction must yield to this paramount intent thus ascertained.”
The term “personal property” in its broadest legal signification includes everything the subject of ownership not being land or any interest in land, as goods, chattels, money, notes, bonds, stocks and choses in action generally. The text writer in 73 C. J. S. p 170, says: “The terms ‘personal property’ or personal ‘estate’ have, in law, a distinct technical meaning, which relates to the nature of the property itself and distinguishes it from real property. They are terms of wide signification, and in their broad and general sense include everything which is the subject of ownership not coming under the denomination of real estate, and which has an exchangeable, value or goes to make up one’s wealth or estate.”
We think the will in this case clearly shows that the testatrix knew the meaning of the phrase “personal property” when she left the entire contents of her home and “all other personal property of which I may die
When the testatrix bequeathed her personal property to her daughter, Mrs. Caffery, she had already, in a preceding item of the will, devised her property in Louisiana to her son, Marcel A. Grillis, her daughter, Daphne Grillis Caffery, and her great granddaughter, Joan. Mortimer; and after bequeathing her personal property to her daughter, Mrs. Caffery, she proceeded- immediately to dispose of her other real property, which was by far the most valuable property that she owned, by providing that her home on West Beach Boulevard in the City of Biloxi should be sold, and that the proceeds derived from the sale of the property, after all expenses were paid, should be divided into thirds, one-third to go to her granddaughter, Lucille Minor Mortimer, one-third to
As stated by the court in Temple vs. First National Bank of Meridian, 202 Miss. 92, 30 So. 2d, 605, a testator, who wishes to do so, may charge his real property with the entire burden of the payment of his debts and the expenses of administration to the complete exoneration of his personalty, if and when the real estate is sufficient to bear the charge. The testatrix in this case had a right to bequeath her personal property to her daughter “ to do with as she wishes, ’ ’ and direct that ‘ ‘ all expenses” be paid out of the proceeds of the sale of her residence property in Biloxi. The chancellor was of the opinion that she had done just that in her will; and we think that it cannot be said that the chancellor was wrong.
We think the chancellor was correct in his holding that under the terms and conditions of the will, Daphne G-illis Caffery took all personal property, including cash and bonds, of which the testatrix died possessed, and that all expenses of administration of the estate, including estate and inheritance taxes, and the debts and the legacy to Louise Boykins, are to be paid from the proceeds of the sale of the real property owned by the testatrix in the City of Biloxi, and referred to as “my home 806 W. Beach”.
The appellants’ attorneys have argued two other points as grounds for reversal of the decree of the lower court; (1) that the court erred in denying the motion of the respondents and cross-complainants for leave to amend their answer and cross-bill so as to conform to the
We think there is no merit in the contention that the court erred in overruling the motion for leave to amend the respondent’s answer and cross-bill. The proposed amendment contained nothing more that a restatement of the respondents’ theory of the case, which had already been clearly stated in their answer and cross-bill; and the amendment, if allowed, would have had no effect upon the final determination of the issues presented by the pleadings. Neither do we think there was reversible error in the court’s action in excluding the evidence offered on behalf of the respondents and cross-complainants relative to the financial circumstances and position of the Cafferys, and other devisees mentioned in the will.
We come now to the consideration of the appellee’s cross-appeal.
There was no error in the chancellor’s refusal to remove Roy M. Watson from his office as executor. The record shows that Watson had been the trusted business agent and advisor of the testatrix for a period of approximately twenty years, and there is no proof in the record to show that he had not been faithful to the trust reposed in him. The fact that the testatrix appointed him as executor of her will indicates very clearly the favorable opinion which she had formed of him both, as to his competency and as to his integrity. The attorneys for the cross-appellant admit that the fact that Watson was a nonresident of the State of Mississippi was not sufficient to disqualify him from serving as executor; and even if it be conceded that a spirit of hostility existed between him and the Cafferys, that in itself was not sufficient to justify his removal from the office of executor.
We find no reversible error in the record, and the decree of the lower court is therefore affirmed, both on direct appeal and on cross-appeal.
Affirmed on direct appeal and on cross-appeal.
