Summary
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.
Summary of this case from Wheeler, Executor v. WilliamsOpinion
No. 37941.
April 23, 1951.
1. Guardian and ward — insanity — appointment — process.
The right of the court to appoint a guardian to a person duly adjudged insane is expressly conferred by statute and no process upon the ward is required, as would be proper in a separate adversary proceeding against him. Secs. 430, 1864 Code 1942.
2. Guardian and ward — executors and administrators — accounting — process.
Where the ward owns property devised and bequeathed to him absolutely under a will, the guardian has the right to present a petition to require the executor of the will to render an account and no citation to the ward is necessary nor is the file of the proceedings in the appointment of the guardian properly a part of the petition for the accounting. Sec. 429 Code 1942.
3. Wills — guardian and ward — executors and administrators — testamentary trustee — construction of will.
Where a guardian by his petition for an accounting by the executor of a will contends that as guardian he is entitled, under the will, to the present delivery to him of the entire estate while the executor contends, all by adequate pleading, that he is a testamentary trustee and entitled to hold the estate for administration as such trustee, a construction of the will is necessary and within the competency of the court.
4. Wills — admonitory items, not dispositive — case in point.
Where by the first item of a will all the property of the testatrix real and personal, except a small sum in cash, was devised and bequeathed to her son but this was followed by two items that the son is "instructed" at his death to leave "according to agreement" everything that belonged to the testatrix to her named niece, with a minor exception to another named person, the two succeeding items were admonitory only and not dispositive, there being no statement in the will as to what was the agreement mentioned or its nature or the parties thereto.
5. Wills — admonitory items.
Where a will by its first item devised and bequeathed to her son all the property real and personal of the testatrix but by two next succeeding items instructed her son to leave everything, "according to agreement", that belonged to the testatrix to a named niece, with a minor exception to another named person, the niece took nothing by the will and would take nothing except as a devisee under an anticipated will to be executed by the son and when it is not shown that the son made any contract to execute such a prospective will there was nothing which the niece could enforce.
6. Wills — absolute devise — diminution to life estate — implication.
An absolute devise may not be reduced or diminished to a life estate by any succeeding language which is inferior in clarity or certainty to the devising clause. Mere implication is not enough.
7 Wills — disposition of estate.
In the will dealt with in the foregoing headnotes there was a fourth item making a definite bequest of a definite small sum to a named granddaughter: Held that with this exception the son was entitled to the entire estate, and the executor was required to render a final account and to transfer the estate to the son's guardian.
Headnotes as approved by Alexander, J.
On Suggestion of Error. Overruled June 11, 1951, (52 So.2d 833)8. Appeal — new questions not raised at trial.
Where all the parties entered into a stipulation at the trial that Ralph Pope Blair was duly adjudged to be a person of unsound mind, and throughout the trial no question whatever was raised on that issue, the appellants are foreclosed from raising it either on a suggestion of error or on a suggestion of diminution of the record.
Headnote as approved by Hall, J.
APPEAL from the chancery court of Lowndes County; A.F. McKEIGHNEY, Chancellor.
Robin Weaver and John F. Frierson, for appellants.
Cited the following:
Abbay v. Hill, 64 Miss. 340, 1 So. 484; Albritton v. Winona, 181 Miss. 75, 178 So. 790, 303 U.S. 627; Balfour, et al. v. Wells, 183 Miss. 707, 184 So. 313; Boggan v. Scruggs, 200 Miss. 747, 29 So.2d 86; Brown v. Land Commissions, 40 Miss. 468; D'Aquilla v. Anderson, 153 Miss. 549, 120 So. 434; Conner's Estate, 286 Pa. 383, 133 A. 545, 46 A.L.R. 777; Dealy v. Keatts, 157 Miss. 412, 128 So. 268; Donovan v. Vicksburg, 29 Miss. 247; Gordon v. McDougal, 84 Miss. 715, 37 So. 298, 5 L.R.A. (N.S.) 355; Halloway v. Jordan, 170 Miss. 99, 154 So. 340; Jack v. Thompson, 41 Miss. 49; Johnston v. Tomme, 199 Miss. 339, 24 So.2d 730; Kendrick v. Kendrick, 135 Miss. 428, 100 So. 181; Koenig v. Kraft, 87 Ky. 95, 7 S.W. 622, 12 A.S.R. 463; Lucas v. Lockhart, et al., 10 S. M. 466; McGuire v. City of McComb, 293 Ill. 441, 127 N.E. 682; NcNeese v. Conwill, 177 Miss. 427, 170 So. 678; Montgomery v. McPherson, 86 Miss. 4, 38 So. 196; Muse v. Muse, 76 Miss. 372, 24 So. 168; O'Reilly v. McGuiggan, 91 Miss. 498, 44 So. 986, 15 Ann.Cas. 623; Price v. Craig, 164 Miss. 42, 143 So. 694; Ralls, et al. v. Johnston, et al., 200 Ala. 178, 75 So. 926; Strange v. Tax Commission, 192 Miss. 765, 7 So.2d 542; Whitaker v. Commercial Nat'l. Bank Trust Co., 179 Miss. 167, 174 So. 890; Yeates v. Box, et al., 198 Miss. 602, 22 So.2d 411; Sec. 14, Mississippi Constitution; Article XIV, U.S. Constitution; Secs. 404, 429, 430, 1296, 1864 Code 1942; 33 Am.Jur., Sec. 13, p. 477; 57 Am.Jur.Sec. 166; 32 C.J. Sec. 256; 44 C.J.S. Secs. 139, 315; Griffith's Mississippi Chancery Practice, 2nd Ed., Secs. 186, 187, 378, 379, 381, 385, 564, 565, 612, 613.
Sams Jolly, for appellee.
A. The ward was duly and legally adjudicated to be a person of unsound mind.
B. There was no error in court's approval of clerk's vacation act in appointing guardian for one duly adjudged insane without further process on ward and while an objection was pending because:
1. Constitution vests the court with jurisdiction of insane people. Sec. 159 Mississippi Constitution; Newsom v. Federal Land Bank, 184 Miss. 318, 185 So. 595.
2. Clerk was authorized to act. Sec. 1248 Code 1942.
3. No further process required. Sec. 430 Code 1942; 28 C.J. Sec. 61, Guardian and Ward, p. 1082.
4. Persons objecting had no standing in court. Barney, et al. v. Barney, 203 Miss. 228, 33 So.2d 823; Newsom v. Federal Land Bank, 184 Miss. 318, 185 So. 595.
5. Remedy was appeal from order approving vacation acts, and appellants cannot now attack decree collaterally.
C. The act of the trial court in overruling appellants' motion to amend petition was not in error because:
1. Said amendment contained no legal ground to sustain petition.
2. Granting of said motion was a matter within sound discretion of court and discretion was not abused. Note 36 Sec. 395, Griffith's Mississippi Chancery Practice, 2nd Ed.
D. The court was entitled to construe the will because issues presented to the court made the construction of the will necessary. Hendrich v. Hendrich, 135 Miss. 428, 100 So. 181.
E. Under the terms of the will the ward was entitled to have the administration of the estate cleared and the assets delivered to him. Yeates v. Box, 22 So.2d 211, 198 Miss. 602.
1. The intention of the testatrix is controlling. Cross v. O'Cavanagh, 198 Miss. 137, 21 So.2d 473; Yeates v. Box, 198 Miss. 602, 22 So.2d 411; Brumfield v. Englesing, 202 Miss. 62, 30 So.2d 514.
2. Doubtful provisions will be construed favorable to next of kin as against those with more remote kinship. Cross v. O'Cavanagh, 198 Miss. 137, 21 So.2d 473.
3. Where an estate is given in one part of an instrument in clear terms it cannot be taken away by subsequent words that are not as clear and decisive as words giving whole estate. Harvey v. Johnson, 111 Miss. 566, 71 So. 824; Fox, et al. v. Merchants Bank Trust Co., et al., 155 Miss. 188, 124 So. 321; Lanham v. Howell, 49 So.2d 701, 33 Am.Jur. 477.
F. It was no error in court's overruling motion of the appellants to reopen the case and offer additional proof because appellant failed to show any right to reopen or what, if any, would be shown that would be additional proof or give any reason for failure to introduce evidence in the trial. It was a matter within sound discretion of the court and there was no abuse of this discretion. Sec. 632 Griffith's Mississippi Chancery Practice (2nd Ed.).
Frierson was appointed executor of the estate of Mrs. Mellie S. Blair, deceased. Mrs. Moorhead, a granddaughter of Mrs. Blair, was, upon application, appointed guardian of her father, Ralph Pope Blair, non compos mentis. Protest against such appointment was filed by the executor but no order was entered thereon.
Mrs. Moorhead, as guardian, filed her petition to require a final accounting by the executor and for delivery of the assets of the estate of Mrs. Blair to her as guardian of the estate of Ralph Pope Blair, who was alleged to be the devisee and legatee of the bulk of the estate of his mother, Mrs. Blair, under her will.
The next proceeding was a petition by the executor to revoke the letters of guardianship. The petitioner was joined by Ralph Pope Blair, by Mellie Grey Irion as cousin and next friend, and by her individually. Answer was filed by Mrs. Moorhead and a cross petition set up a claim to the bulk of the estate, as guardian, and prayed for a construction of the will of Mrs. Blair. The executor asserted his right to administer the estate as testamentary trustee for Ralph Pope Blair.
Upon a hearing, in which the testimony was chiefly documentary, the chancellor, by final decree, construed the will to devise to Ralph Pope Blair the estate and ordered the executor to render a final account as such, and to deliver the estate to the appellee, as guardian. From this decree, the executor appeals.
(Hn 1) The record makes clear that Ralph Pope Blair was duly adjudged non compos mentis. Appellant's motion to include, by amendment to his petition, the file in these proceedings was overruled. We find no error here. The validity of this proceeding is not and cannot be seriously questioned, and the right of the court to appoint a guardian for the insane ward is conferred by Code 1942, Section 430. There was no statutory requirement under the circumstances for process upon the ward as would have been proper in a separate and adversary proceeding against him as provided in Section 1864. (Hn 2) Nor does this proceeding involve the necessity for citation upon the ward as where approval of a final account is sought. Code 1942, Section 429. Here the filing, and not the approval, of such account is prayed for.
(Hn 3) The competence of the court to construe the will is challenged. As shown, the pleadings and the prayers thereof are based respectively upon the executor's contention that he is a testamentary trustee, and appellee's position that there exists no trust but that the ward is entitled under the will to the entire estate. To adjudicate this controversy, which involves property rights, construction is necessary and was in fact prayed for in appellee's cross petition.
The will of Mrs. Blair is as follows:
"Last Will and Testament "State of Mississippi "Lowndes County "City of Columbus "July 27, 1938
"I, Mellie Smith Blair, make and publish this, to be my last will and testament — revoking all former wills.
"Item 1: I bequeath to my son, Ralph Pope Blair, all of my property, real estate and personal.
"Item 2: I instruct my son, according to agreement, to leave everything that belonged to me to my niece Miss Grey Irion at his death, — except a small bequest to Mr. Willis Pope.
"Item 3: I instruct my son, according to agreement, to leave the diamond ring that he wears and my bronze candelabras, with the cut glass prisms, to Mr. Willis Pope, at his death.
"I request my administrator to give my son, R.P. Blair, about $70.00 per month, or as near that amount as is practical, while my estate is being settled.
"I also request my administrator to pay the Home Owners Loan Corporation $39.64 per month, payment on my home while he is settling up my estate.
"Item 4: I bequeath Mrs. Carolyn Moorhead, nee Carolyn Blair, my granddaughter, $25.00.
"I request Mr. John Frierson to administer on my estate.
"Mellie Smith Blair"
(Hn 4) Under Item 1, the entire estate (with a trivial exception) was devised absolutely to the ward. This sharpens the inquiry to consideration as to whether this estate is clearly diminished by Items 2 and 3.
We agree with the chancellor that the language in the two succeeding items was admonitory only and not dispositive. At the outset we must disregard the phrase "according to agreement" as contributing nothing to the purpose and intent of the testatrix. In the first place it is not known who were the parties to this "agreement" nor what was its nature. The surmise of the appellant that the parties thereto were the testatrix, Ralph Pope Blair, and Miss Irion not only remains a speculation but includes therein a party who was not sui juris.
(Hn 5) The clause "I instruct my son", regardless of its connotation under other circumstances, can not here be construed otherwise than as advisory. In this connection the instruction was that the devisee "leave" everything that "belonged" to the testatrix to the niece "at his (Blair's) death." So that if Miss Irion is to accede to any of the property, it is to be by virtue, not of the will of Mrs. Blair, but of an anticipated will of Ralph Pope Blair. The niece is therefore not a devisee of Mrs. Blair but at most a prospective devisee of Ralph Pope Blair. She is devised nothing under the will of Mrs. Blair.
We have upheld contracts by which persons have obligated themselves to devise property, when such contracts were executed by the proposed devisee. Johnston v. Tomme, 199 Miss. 337, 339, 24 So.2d 730. Here, however, there is no contract shown. No such case is here presented.
(Hn 6) 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.
(Hn 7) We are of the opinion that Ralph Pope Blair is entitled under Item 1 to so much of the estate as is not definitely bequeathed under Item 4. The decree is therefore affirmed as requiring a final accounting by the executor, transfer of the estate to the appellee, as guardian, and dismissal of the petition of appellant to revoke the letters of guardianship issued to appellee.
Affirmed.
ON SUGGESTION OF ERROR.
Appellants have filed a suggestion of error and in addition thereto a suggestion of diminution of record whereby they pray to have brought up as a part of the record in this case a copy of the proceedings in the entirely separate cause wherein Ralph Pope Blair was adjudicated non compos mentis so as to question and bring into review the statement in the original opinion herein that Ralph Pope Blair was duly adjudged non compos mentis.
(Hn 8) At the trial in the lower court counsel for all the parties entered into an agreement and stipulation as to a part of the facts in the case, among which is: "It is further stipulated and agreed that Ralph Pope Blair, the person mentioned in said will and the son of Mrs. Mellie Smith Blair, was duly adjudged to be a person of unsound mind in a lunacy proceeding in Case No. 5601."
It is now argued vigorously that there are certain defects in said lunacy proceeding as a result of which there was no legal adjudication of insanity. Without discussing the merits of those contentions we think they are foreclosed by the above stipulation, especially since one of appellants affirmatively alleged in the pleadings that Blair was legally adjudicated non compos mentis and the other appellant did not raise any question as to the legality of that proceeding, and throughout the trial no effort was made to revoke the stipulation. The prayer of the suggestion of diminution of the record is accordingly denied.
We have carefully considered all of the points raised by the suggestion of error and have reached the conclusion that the original decision herein is correct.
Suggestion of diminution of record denied and suggestion of error overruled.