108 So. 2d 579 | Miss. | 1959
There is submitted to the Court for construction the second item in the will of S. C. Williams, deceased, executed on August 2, 1934. The item in question reads as follows: ‘ ‘ Second, — I hereby give and bequeath unto my beloved wife, Frankie Williams, all my property, real, personal and mixed of every nature kind and description, except a certain parcel of land consisting of seven and one third acres more or less, to my son Gr. E. Williams, the said parcel of land lying and being adjacent to his present land as agreed upon, he already having' received his portion of my estate he therefore will not participate further in same. It is my will and desire that my daughter, Lillie Williams, receive all property, personal and real, that her mother, Frankie Williams, have or possessed with at her death.”
It is the contention of the appellant that under this item of the will there was devised to Mrs. Frankie Williams only a life estate and that upon the death of the testator S. C. Williams the remainder therein became vested in his daughter Lillie Williams, whereas it is the contention of the appellees, who are the children of Gr.
It is to be conceded that the intention of the testator must be determined from the surrounding circumstances at the time of the execution of the will of S. C. Williams, and not at the time of the death of his wife, Mrs. Frankie Williams.
At the time of the execution of this will on August 2, 1934, shortly before the death of the testator on November 21, 1934, the circumstances were as follows: The testator, S. C. Williams, had a wife, Mrs. Frankie Williams, a son, Gr. E. Williams, and an unmarried daughter, Lillie Williams, who was then about forty years of age. The testator and his wife had on May 30, 1928, conveyed to their son, Gr. E. Williams, 25.9 acres of their farm land, and it is to be noted in Item 2 of the will hereinabove-quoted that he devised to the said son an additional 7 l/3rd acres of land adjacent to the tract theretofore conveyed to him. For that reason, this item of the will provides that he, Gr. E. Williams, “having* received his portion of my estate he therefore will not participate further in same.” This item of the will, it will be noted, states that “I hereby give and bequeath unto my beloved wife, Frankie Williams, all my property, real, personal and mixed of every nature kind and description, except a certain parcel of land consisting of seven and one third acres more or
It is therefore argued by the appellees that the words “It is my will and desire” as to what should become of his wife’s property at her death were mere precatory words expressing the wish of the testator, and were not words of devise. At least these words do not carry as much force as the words used by the testator when he said “I hereby give and bequeath unto my beloved wife, Frankie Williams, all my property * * *”
Moreover, at the time of the execution of the will of S. C. Williams on August 2, 1934, his daughter Lillie Williams, then about forty years of age, as aforesaid, had been living with the testator and his wife all of her life and was still residing in their home. Naturally, the testator, having already provided for his son, felt some obligation and responsibility in making some provision for his said daughter, or to express the will and desire that her mother, Frankie Williams, should do so with whatever property she might have or be possessed with at her death.
But Lillie Williams died approximately one year prior to the death of her mother. At the time of the execution
It will be noted that the second and only other sentence in Item 2 of the will hereinbefore quoted refers to the property that Lillie Williams is to receive as being that which Franlde Williams may “have or (be) possessed with at her death.” We therefore do not think that it was intended by the testator to vest a remainder in his daughter Lillie Williams, effective at the time of the death of the testator, but that he merely meant that if Lillie Williams was living at the time of the death of her mother that she was to “receive all property * * * that her mother * * * have or (be) possessed with at her death.” Since Lillie Williams died prior to the death of her mother, she could not receive any property that her mother had or was possessed with at the time of her death. We think that the intention of the testator is clear that he wanted Lillie Williams, if living, to receive “all property * * * that her mother, Frankie Williams, have or (be) possessed with at her death”; that his concern was for his daughter Lillie Williams and not for any husband that she may leave surviving her, and that he did not intend to express any desire that his daughter Lillie Williams should receive any property of her mother until the latter’s death.
The daughter having predeceased her mother, the second sentence of Item 2 of the will became inoperative since the daughter was not there to receive any property that her mother had at the time of her death.
The wife, Frankie Williams, in recognition of the desire of her husband, and in carrying out her own de
It is assigned as error that the chancellor permitted G. E. Williams to testify, but we do not think that he was incompetent to testify, since he is not shown to have been claiming any interest in the land, but was testifying to establish the claim of his children thereto.
Section 833, Code of 1942 Annotated, reads as follows: “Every estate in lands granted, conveyed, or devised, although the words deemed necessary by the common law to transfer an estate of inheritance be not added, shall be deemed a fee-simple if a less estate be not limited by express words, or unless it clearly appear from the conveyance or will that a less estate was intended to be passed thereby.”
We do not think that the item of the will here in question reduced the fee simple estate devised to the wife, to a less estate by express words, nor do we think that it clearly appears from the will that a less estate was intended to be passed thereby.
We think that the second sentence of Item 2 of the will is merely precatory, since it advises his wife of his desire with respect to the ultimate disposition of her property. The expression of this desire is not limited to the property that the testator devised to his wife but purports to include all property that the mother should have or be possessed with at the time of her death.
It is true that it was stipulated that 66.77 acres of land was all of the land that the testator owned at the time of his death, other than the 7 l/3rd acres that he devised in his will to his son G. E. Williams; and that it was also stipulated that this 66.77 acres was the only land Mrs. Frankie Williams owned at the time of
The cases of Selig v. Trost, 110 Miss. 584, 70 So. 699, and Spiva v. Coleman, 122 Miss. 142, 84 So. 144, refer to “my said property”, (meaning the property of the testator only), and not to the property that the wife may own at the time of her death.
In Frierson v. Moorhead, 211 Miss. 811, 51 So. 2d 925, the Court said: “It is elemental that an absolute devise may not be reduced or diminished to a life estate by any succeeding language which is inferior in clarity and certainty to the devising* clause. Mere implication is not enough. 33 Am. Jur., Life Estates, etc., Section 15.”
In re Vail’s will, 228 Miss. 151, 87 So. 2d 68, the Court ag*ain said: “Still another well-recognized principle is that an absolute devise may not be reduced or diminished to a life estate by any succeeding language which is inferior in clarity and certainty to the devising clause,” citing former Mississippi cases. To the same effect is Martin v. Eslick, 229 Miss. 234, 90 So. 2d 635, and the cases therein cited.
In the case of Sweigert v. Sweigert, 89 N. E. 2d 686, the Ohio Court of Appeals held that where the wife gave, devised and bequeathed to her husband all of her property, and immediately afterwards declared that after his decease all of his real and personal property that was in his possession at the time of his death, shall be
See also Page on Wills, Lifetime Edition, Vol. I, Sec. 91, p. 199; Fields v. Fields, 139 Oregon 41, 3 P. 2d 771; Bennett v. Bennett, 193 Misc. 553, 81 NYS 2d 653; Barco v. Owens, 212 N. C. 30, 192 S. E. 862; Moran v. Moran, 143 Mich. 322, 106 N. W. 206; and Bradford v. Martin, 199 Iowa 250, 201 N. W. 574.
Announcing the same principle declared in the foregoing decisions is the statement in 19 Am. Jur., Estates, Sec. 120, p. 576: “Where there is an absolute or unlimited devise or bequest of property, a subsequent clause expressing a wish, desire, or direction for its disposition after the death of the devisee or legatee will not defeat the devise or bequest or limit the estate or interest in the property to the right to possess and use during the life of the devisee or legatee. The absolute devise or bequest stands, and the other clause is to be regarded as presenting precatory language.”
From an examination of the numerous decisions cited in the excellent briefs, both for the appellant and for the appellees, and a discussion of which decisions would unduly prolong this opinion, we have concluded that Item 2 of the will of S. C. Williams, deceased, devised a fee simple title to Mrs. Frankie Williams, wife of the testator, and that the second sentence of the said item is inferior in clarity and certainty to the devising clause and that the words “It is my will and desire that my daughter, Lillie Williams, receive all property * * * that
Affirmed.