Summary
In Milton v. Milton, 193 Miss. 563, 10 So.2d 175 (1942), the decedent devised to his wife, Lynn Milton, a life estate in the home they shared at the time of his death with the remainder to one of his two daughters, Gloria Lee Milton. The wife renounced the will and demanded a child's share.
Summary of this case from Matter of Estate of HollawayOpinion
No. 35047.
November 2, 1942.
1. WILLS.
Where testator provided for monthly payments to widow so long as she remained his widow and provided that in event of her death or remarriage, "and $200 monthly payments to her shall cease," then $75 per month should be paid to each of widow's two daughters, one of whom was by a former marriage, testator intended payments to daughters should begin upon cessation for any reason of the payments to widow, and daughters became entitled to such payments upon renunciation of the will by a widow (Code 1930, sec. 3561).
2. TRUSTS.
Within certain limitations, a beneficiary in a trust may decline to accept it and where the benefit of the trust declined is in the form of periodical payments of money and trust instrument provides that on the cessation thereof, similar periodical payments, though different in amount, shall then be made to others, such others become immediately entitled to the payments unless trust instrument provides otherwise.
3. WILLS.
A testator has the right under statute to bequeath all of the property he may have, not only at the time will is executed, but any that he may thereafter acquire and own at the time of his death (Code 1930, sec. 3550).
4. WILLS.
A will becomes operative only when testator dies and must be interpreted as if made just preceding that event and hence applies to all property then owned by testator embraced within the will's description thereof, unless a contrary intent appears (Code 1930, sec. 3550).
5. WILLS.
Where testator at the time will was made owned property embraced therein which he, afterwards disposed of and acquired other property embraced within the same description and owned such property at his death, will must be applied thereto unless something therein indicated a contrary intent (Code 1930, sec. 3550).
6. WILLS.
Where testator subsequently sold the house occupied by him as his home at the time will was executed and acquired another house which was occupied as his home at the time of death, testamentary devise of testator's "home place" to widow for life with remainder to daughter applied to property used by testator as his home at time of death. (Code 1930, sec. 3550).
7. WILLS.
Where testator's widow renounced will devising to her a life estate in the home of testator and family at the time of his death with remainder to daughter, widow was entitled to a one-third interest in the property in fee and daughter to the other two-thirds interest therein, subject to widow's right under statute to occupy and use the property during her widowhood (Code 1930, secs. 1412, 3561).
APPEAL from the chancery court of Lauderdale county, HON. A.B. AMIS, SR., Chancellor.
Neville Neville, of Meridian, for appellant, Mrs. J.J. Milton.
The sole question involved in the appeal of appellant, Mrs. J.J. Milton is: Are the monthly payments to complainants, Gloria Lee and Betty Lynn Milton, provided for in item 2 of the will, accelerated by the renunciation of the will by the widow and made payable from the date of the renunciation, and not from the death or remarriage of the widow, as provided in the will?
The doctrine of acceleration is never applied to defeat the testator's intention.
Compton v. Barbour (Va.), 98 S.E. 651, 5 A.L.R. 465.
Let it be carefully noted that the testator directed his executor "to pay to my beloved wife, Lynn Milton, the sum of $200.00 per month from the assets of Milton Brooks Co.; said payments to continue so long as my wife remains my widow; in the event of her remarriage, I direct my executors to discontinue said monthly payments to continue so long as said business justify same and until life insurance payable to estate has been expended."
The will then provides: "In the event of death or remarriage of my wife and $200.00 monthly payments to her shall cease, then I direct my executors to pay to Betty Lynn Milton and Gloria Lee Milton, each the sum of $75.00 per month, etc."
The monthly payments to the wife were to be paid from a special fund and were to continue "so long as said business justify same and until life insurance payable to estate has been expended."
The monthly payments to Betty Lynn and Gloria Lee Milton were to be paid "in the event of death or remarriage of my wife."
If the will had provided that upon the death or remarriage of the widow the executors should pay to Betty and Gloria the monthly payments from the monthly payments directed to be paid to the wife, then we would have a different case. There is no connection between the payments to the wife and those to be paid to Betty and Gloria. One is to be paid from a designated fund, and the others from the estate.
We submit that the intention of the testator as to when the payments to Betty and Gloria should begin is not in doubt — "in the event of the death or remarriage of my wife."
It is plain that it was in the testator's mind that the widow should provide for his young step-daughter, Betty, and his infant daughter, Gloria, during her widowhood or until her death, from what she would take under his will or from his estate, in case she should renounce the will. We have a right to assume that the widow renounced the will because it was to her financial interest to do so. If the widow could provide for Betty and Gloria, during her widowhood, or until her death, from the provisions made for her in the will, surely she can provide for them out of one-third of the whole estate, which she inherited when she renounced the will.
It is only in cases where a will creates a life estate in property or in a specified fund, and also designates some to take as remaindermen, that the doctrine of acceleration applies. Betty and Gloria are not remaindermen of a life estate in favor of the widow.
Therefore, the cases of Rose v. Rose, 126 Miss. 114, 88 So. 513; Callicott v. Callicott, 90 Miss. 221, 43 So. 616; and Greely v. Houston, 148 Miss. 799, 114 So. 740, relied on by the attorney for the appellees in the court below are not in point.
This court in Rose v. Rose, supra, wrote: "The principle of acceleration of estates where the life tenant terminates his estate seems to rest upon the reasoning that the life estate is to be regarded as in the nature of a charge upon the gift over, the extinguishment of which allows ultimate disposition to take immediate effect."
As we have seen, there was no gift over to Betty and Gloria.
In Lovell v. Charleston, 66 N.H. 584, 32 A. 160, the Supreme Court of New Hampshire held that where a testator provided that the income from the residue of his estate should be paid to his wife during her life, and that on her death certain legacies be paid, the widow's waiver of the provisions of the will does not affect the time of payment of the legacies.
In the Lovell case the income payable to the wife during her life and the legacies payable at her death, were payable from the same fund, which is not true in the case at bar, as we have heretofore pointed out. Notwithstanding that fact the Supreme Court of New Hampshire held that the payment of the legacies was not accelerated by the renunciation of the will by the widow.
The court said "the bequests are not those of ordinary remainders after a life tenancy, where, by a renunciation by the life tenant, the estate in remainder is brought forward, and attaches at once to prevent a relapse, there being nothing in the will to show a different intention."
The Supreme Court of Michigan, in the case of Re Povey, 271 Mich. 627, 261 N.W. 98, 99 A.L.R. 1184, held that "it is conclusively presumed that testator when he made his will had in mind the right of the widow to elect to take under the Statute rather than under the will."
With this right of the widow in his mind the testator in the case at bar provided that the legacies to Gloria and Betty should not be paid except in case of the remarriage or death of his widow. If the testator had desired these legacies to be paid to Gloria and Betty in the event of the widow's renunciation of the will, he would have said so.
The court in Re Povey, supra, said, "But it is obvious that the testator, had he seen fit so to do, might have made alternative provisions in his will for either or both of his children in the event the widow elected to renounce her rights under the will."
Exhaustive notes on the doctrine of acceleration will be found in 5 A.L.R. 460 and 99 A.L.R. 1187.
We have failed to find, after an exhaustive search, any case where a court has applied the doctrine of acceleration to a case similar to the case at bar.
We repeat that the doctrine is only applied in cases where the will creates a life estate and remainders.
We respectfully submit that the decree of the lower court wherein it decreed that the legacies to Gloria and Betty should be paid from the date of the renunciation of the will is erroneous, and should be reversed.
Reily Parker, of Meridian, for appellant, Devota Milton.
Discretionary powers in a will to be exercised by more than one person cannot be exercised by only one.
Bartlett v. Sutherland, 24 Miss. 395; Ex parte White et al., 118 Miss. 15, 78 So. 949.
If the power given to the executors and trustees in this will has failed, then there is no other provision for the exercise of the powers directed to be so used. Where such power fails, then the property involved in the exercise of such failed power descends, and in this case would descend under the law of descent and distribution to the widow and the two daughters of the testator or by reason of the residuary clause of the will to the same parties.
Hammett v. Markham, 128 Miss. 39, 90 So. 848; 69 C.J. 853, 1067.
Acceleration is based on remainders only.
Blatt v. Blatt, 243 P. 1099, 57 A.L.R. 221; 23 R.C.L. 492; 69 C.J. 1145.
Acceleration is not applicable in this case.
Lovell v. Town of Charleston, 66 N.H. 584, 32 A. 160.
If there be a remainder in this case it is a contingent remainder.
In the case of a contingent remainder, it being uncertain until the happening of the contingency who will be entitled thereto, there can be no acceleration by a premature determination of the preceding estate.
Rose v. Rose, 126 Miss. 114, 88 So. 513; Hosemeier v. Wilke, 141 N.E. 176; Askey v. Askey, 196 N.W. 891; 21 C.J. 995.
The intention of the testator, as expressed by the language used in the will, is the controlling feature, and it occurs to us that the testator in writing his will by using the words "my home place" was undertaking to describe and identify a specific piece of property and he did so describe and identify a specific piece of property, and there is nothing in the will to justify the contention that even though the will did intend to so describe and identify this specific piece of property that the identification was not fixed, but shifting to the extent that any property and all property was available for such identification until the death of the testator. If the testator had continued to live in the house occupied by him at the time the will was executed until the time of his death there would have been no controversy as to this question, and if this description was sufficient at any time to identify the property willed, it continued to be fixed thereafter and applied to the same property.
Bozeman Bozeman, of Meridian, for appellees.
By the doctrine of acceleration, under the decisions of the Supreme Court of Mississippi, and of other states, the $75 per month payments to the children would begin when the prior $200 per month payments to the widow ceased (although they ceased not because of her death or remarriage, but because of her renunciation of the will).
Norfleet v. Callicott, 90 Miss. 221, 43 So. 616.
See Rose v. Rose, 126 Miss. 114, 88 So. 513; Greely v. Houston, 148 Miss. 799, 114 So. 740.
Appellants contend that unless there is a particular estate and a remainder in a designated property, the doctrine of acceleration does not apply and is, therefore, not applicable in the case at bar.
Contrary to the contention of appellants, the doctrine of acceleration has been applied in many cases where there was not involved a particular estate and a remainder in a specific piece of property, but where the payment or enjoyment of legacies depends upon the termination of a prior devise or legacy, whether the legacies accelerated be in the same amount as the prior legacy or not.
Trustees of Church Home v. Morris (Ky.), 36 S.W. 2; Ferguson's Estate (Pa.), 20 A. 945; Cabaugh's Appeal, 24 P. State 143; In re Diston's Estate (Pa.), 101 A. 804; Union Trust Co. v. Rossi et al. (Ark.), 22 S.W.2d 370; 28 R.C.L. 333; 23 R.C.L. 537, Sec. 104.
The contention of appellants that the legacies directing the monthly payments of $75 each to the children, after the payments to the widow, are contingent remainders, and that, therefore, the doctrine of acceleration does not apply to them, is not well taken.
A typical example of a contingent remainder is that involved in the case of Rose v. Rose, 126 Miss. 114, 88 So. 513, where a devise was made to the widow and upon her death to such of her children begotten by the testator as shall then be living.
The contingency was, of course, as to whether or not such children, or any of them, would be living at the date of the death of the widow.
As stated in Northern Trust Co. v. Wheaton, 249 Ill. 606, 34 L.R.A. (N.S.) 1150, 1152, a contingent remainder is defined to be one where there is uncertainty, either as to the person who is to receive, or in the gift itself, when the legacy or gift is contingent upon the remainderman or legatee being alive at the expiration of the life estate. The court says in this case: "The rule is that where the postponement of the estate is for reasons not personal to the remaindermen, the remainder is vested." . . . and further says that: ". . . If, when the time for the payment of the legacy arrives, there is no uncertainty as to the legatee or as to the gift, then the fact that the legacy may have been in form contingent becomes wholly immaterial."
The sixth assignment of error is that the court below erred in holding that an undivided two-thirds interest in the home place owned and occupied by the testator at the time of his death passed under the will to Gloria Lee Milton.
This assignment of error involves these questions: (1) Does after acquired real estate pass under a will? (2) Does the description in the will — "my home place" — apply to the home place owned and occupied by testator at the date of his death? (3) The effect of renunciation of the will by the widow on the devise to Gloria Lee of the remainder in fee simple.
We submit that this contention also is without merit.
Under the common law, a testator could not devise any real property except such as he actually owned at the date of the will; but that rule has been changed by the statutes of England, and of many states.
Section 3550 of the Mississippi Code of 1930, being a rescript of former like statutes, empowers a person to devise all the estate, etc., "which he or she hath, or at the time of his or her death shall have of, in, or to lands, etc."
A will should be construed to speak and take effect as if it had been executed on the day of the death of the testator.
Wynne v. Wynne, 23 Miss. 251; Macrae v. Lowery et al., 80 Miss. 47, 31 So. 538; Carroll v. Carroll, 16 Howard 275, 14 L.Ed. 936; Hardenbergh v. Ray, 151 U.S. 112, 38 L.Ed. 93; In re Ingram, 42 Ont. L. Rep. 95; Note on page 498 of 74 L.R.A.; 1 Schouler on Wills 611, 5th Ed., Sec. 486.
By her renunciation of the will the widow renounced the devise of the home place to her for the period of her natural life, and instead thereof took as an heir under Sections 1404 and 1410, Code of 1930, a child's part in the home place, which was an undivided one-third interest, together with her right under Section 1412, Code of 1930, to occupy or use the home place during her widowhood.
This is an appeal to settle the principles of the case.
Newell L. Milton died in April, 1940, leaving as his heirs-at-law his widow, Mrs. Lynn Milton, and two daughters, Devota and Gloria Lee Milton, the first, an adult, was Milton's child by a former marriage, and the second, a minor about six years of age, was born of his marriage with Mrs. Lynn Milton. His mother, Mrs. J.J. Milton, also survived him. Mrs. Lynn Milton had a daughter by a former marriage, Betty Lynn Milton, a minor, who was living in Newell L. Milton's home at the time of his death as a member of his family and was being supported by him. Newell L. Milton left a will, his widow being one of the beneficiaries therein, which was duly probated and renounced by the widow under Section 3561 of the Code of 1930, who is claiming and is conceded to be entitled to the interest in her husband's estate that she would have inherited had he died intestate. The administration of Milton's estate has not been closed but this proceeding was begun by Mrs. Lynn Milton and by Gloria Lee and Betty Lynn Milton by their mother as their next friend, asking for certain relief, the granting or denial of which necessitated a construction of the following items in Newell L. Milton's will:
"Item # 2. My executors are directed to pay unto my beloved wife, Lynn Milton, the sum of $200.00 (Two Hundred) Dollars per month from the assets of Milton Brooks Co., said payments to continue so long as my wife remains my widow; in the event of her re-marriage, I direct my executors to discontinue said monthly payments. Said monthly payments to continue so long as said businesses justify same and until life insurance payable to estate has been expended.
"In the event of death or re-marriage of my wife and $200.00 monthly payments to her shall cease, then I direct my Executors to pay to Betty Lynn Milton and Gloria Lee Milton, each the sum of $75.00 (Seventy-Five) Dollars per month until each arrives at age of sixteen years, at which time said Executors shall pay unto each the sum of $100.00 per month, said payments to continue until said child, or each of them, shall marry, at which time said payments are to cease and said child shall not thereafter be entitled to receive same from my estate until and unless satisfactory proof of actual need and necessity therefor can be made to appear to the satisfaction of my executors, and subject to the approval of the Court administering said estate. The provision herein contained relative to the two children reestablishing their right to receive said monthly payments shall also apply to my wife in the event of adversity, even after re-marriage, provided, however, the amount to be received by her under said circumstances shall not amount to more than $100.00 per month nor to continue longer than actual need exists.
"I devise and bequeath unto my wife my home place for the period of her natural life, and at her death remainder in fee simple to my daughter, Gloria Lee Milton."
Items 3 and 4 of the will, not specifically involved here, are as follows:
"Item 3. I give, devise and bequeath unto my daughter, Devota Milton the sum of $100.00 per month and also give, devise and bequeath unto my mother, Mrs. J.J. Milton, the sum of $50.00 per month, said payments to be made by my executors from assets and earnings of my interest in Milton Ryan Co., Incorporated, so long as said business may continue, and in the event of its liquidation I direct said Executors to continue said payments from Trustee account established by Item 1 in Citizens National Bank. Each of said devisees to receive said monthly bequests during their natural life.
"Item 4. The residue of the estate of whatsoever description, real and personal, after the items enumerated in this will shall have been literally carried into effect, I devise and bequeath share and share alike unto my wife, Lynn Milton, and my daughters, Gloria Lee and Devota Milton."
Item 6 of the will nominated Eddie Holt and W.R. Spencer as executors thereof; and Item 7 thereof provided that: "My executors are also named as Trustees and as such will carry into effect the Trusts created, and wherever the name Executor or Executors shall appear herein, same shall be construed to mean Trustees as well." Holt alone qualified as executor of the will. Milton's will was made in June, 1936. He then owned a house and lot, occupying it as his home. He thereafter sold it and purchased another, occupied and used it as his home and was so doing at the time of his death.
This appeal necessitates a response to two questions only and will be confined thereto.
1. Did the bequests of $75 per month each to Betty Lynn Milton and Gloria Lee Milton come into effect on the renunciation of the will by the testator's widow, Lynn Milton, or do they become effective when, but not until, Mrs. Lynn Milton either remarries or dies?
2. Should the words "my home place" in the devise thereof to the testator's widow for life, with remainder to his daughter, Gloria L. Milton, be applied to the place occupied by the testator as his home at the time of his death?
It is clear that the testator intended to provide for the support of his widow and her two children, and supposed that his widow would so apply the $200 monthly payments bequeathed to her as long as she continued to receive them. It is also clear that he intended that when these "monthly payments to her (his widow) shall cease," the payments of the $75 per month to each of her children should begin. It is true that he did not anticipate the renunciation of his will by his widow, and two other events, the occurrence of either of which would cause these payments to her to cease, were referred to by him, i.e. her remarriage or death. Nevertheless, the equivalent of each of these events in so far as they affect her right to the monthly payments has occurred — her renunciation of the will.
A more difficult question might be presented if the testator had said that "in the event of death or remarriage of my wife, then I desire," etc.; but the use of the words, "and $200 monthly payments to her shall cease" between the words "wife" and "then" seems to demonstrate that he meant for these payments to his widow's children to begin on the cessation for any reason of the monthly payments bequeathed to her.
The same result would follow under the law of trusts, without Section 3561 of the Code under which Mrs. Milton renounced the will. Within limitations not here present, a beneficiary in a trust may decline to accept it. 1 Rest. Trusts, Section 36, Comment c; Greely v. Houston, 148 Miss. 799, 114 So. 740. From which it necessarily follows that where the benefit of the trust declined is in the form of periodical payments of money, and the trust instrument provides that on the cessation thereof similar periodical payments, though different in amount, shall then be made to others, such others become immediately entitled thereto, unless the trust instrument, here a will, otherwise provides; which this will does not do.
Under Section 3550, Code of 1930, a testator has the right to devise or bequeath all of the property which he may have, not only at the time the will is executed, but any that he may thereafter acquire and own at the time of his death. Since a will becomes operative when, but not until, a testator dies, prior to which time he has full control over it, it must be interpreted as if made just preceding that event, and applied to all property then owned by him, embraced within the will's description thereof, unless a contrary intent appears.
If, when a will is made, the testator owned property embraced therein which he afterwards disposes of, and acquires other property embraced within the same description, and owns it at his death, the will must be applied thereto, unless something therein indicates that the testator does not so intend. At the time this testator made this will he, of course, had in mind the place he then occupied as a home, but the description of it therein does not so limit it; and when he disposed of that home and acquired another, which he was occupying as such at his death, and since the will speaks from that date, it must be construed as if it had been made or read and approved by the testator just before the occurrence of that event.
From this, it follows that the court below correctly held, (1) that the provision for the $75 monthly payments to Betty Lynn and Gloria Lee Milton become effective on the renunciation of the will by Mrs. Lynn Milton, and (2) that the place occupied by the testator as his home at his death passed, under the will, to his widow and Gloria L. Milton; but because of the renunciation of the will by his widow she became entitled to a one-third interest to the property in fee; and Gloria Lee Milton to the other two-thirds interest therein, subject to Mrs. Lynn Milton's right under Section 1412, Code of 1930, to occupy and use it during her widowhood.
Affirmed and remanded.