Summary
In Rose v. Bennett, 193 Miss. 878, 11 So.2d 307, the testator bequeathed $1,000 to his brother John P. Wilson, "and at his death if any part thereof remains unused by him, I will and direct that it shall become the property of my nephew Marvin Wilson."
Summary of this case from Cooper v. SimmonsOpinion
No. 35211.
January 18, 1943.
1. EXECUTORS AND ADMINISTRATORS.
Where testator bequeathed $1,000 to his brother and at his death, if any part thereof remained unused by him, to testator's nephew, and brother died within a month after testator's death without receiving any part of the bequest, chancery court in which estate of the testator was being administered rather than chancery court in which estate of the brother was being administered, had right to determine to whom the legacy belonged (Code 1930, sec. 352).
2. WILLS.
Where testator bequeathed $1,000 to his brother and at his death, if any part thereof remained "unused," to testator's nephew, and the brother died within a month after the testator's death without receiving any part of the bequest, the bequest belonged to the nephew.
APPEAL from chancery court of Yalobusha county, HON. L.A. SMITH, SR., Chancellor.
Stone Stone, of Coffeeville, for appellant.
John P. Wilson filed a contest and died within twenty-four hours and later the contest was withdrawn and on that simple statement the court has held that the contest constituted an irrevokable repudiation of the will and forever barred John P. Wilson and his estate from any participation in the benefits provided by the will of his brother, Wm. M. Wilson. There is no pretense that the will itself has any provision barring a contestant from ever participating in the benefits.
We insist that the bequest to the brother, John P. Wilson, should have been paid to Mrs. Rose, the executrix of John P. Wilson's estate, to be administered in the courts of Montgomery County, Mississippi, which was the place of John P. Wilson's death and the jurisdiction of his will. R.F. Kimmons, of Water Valley, for appellee.
The appellant challenged the jurisdiction of the Chancery Court of the Second District of Yalobusha County, Mississippi, where the administration of the estate of William M. Wilson, by his executor, was pending, and alleged that the Chancery Court of Montgomery County, in which the administration of the estate of John P. Wilson was pending, alone had jurisdiction. No part of the estate of William M. Wilson had been paid to John P. Wilson or his executrix and therefore any claim that might have existed was against the estate of William M. Wilson. Section 352 of the Code of 1930 clearly confers jurisdiction on the Chancery Court of the Second District of Yalobusha County and that court alone had jurisdiction to determine any liability against the estate. I do not feel it necessary to spend much time on this question. This court has decided that question frequently and in several cases rendered recently.
Buie v. Pollock, 55 Miss. 309; Newsom et al. v. Federal Land Bank, 184 Miss. 318, 185 So. 595; State ex rel. Gully v. Massachusetts Bonding Ins. Co., 187 Miss. 66, 191 So. 285.
William M. Wilson departed this life December 11, 1940. His will was probated by a decree of the chancellor on December 14, 1940. On the 18th day of January, 1941, one month and four days after the probate of the will of William M. Wilson, John P. Wilson filed a contest of the will of William M. Wilson. In this contest it is alleged several different times that William M. Wilson was mentally incapable of making the will; that he died intestate; that his will was no will at all and he asked for an issue of devisavit vel non, and in his prayer for relief he asked the court to declare the will of William M. Wilson invalid and ineffective and that his estate be administered and distributed as if William M. Wilson was intestate.
We find from the petition of the appellant for a revivor that John P. Wilson died on the night following the filing of this contest, a few hours after it was filed. We find that this contest of the will of William M. Wilson was continued by the executrix of John P. Wilson until the October term of the court, about nine months after the death of John P. Wilson. It certainly cannot be said that the legacy was accepted by John P. Wilson, and of course if it was not accepted by him there was no part of it used.
Title to property bequeathed does not vest in the legatee until the legacy is accepted by him.
Rose v. Rose, 126 Miss. 114, 88 So. 513; Greely v. Houston, 148 Miss. 799, 114 So. 740; West v. West, 131 Miss. 880, 95 So. 739; Milton v. Milton, 193 Miss. 563, 10 So.2d 175; Vandergrift's Appeal, 80 Pa. St. 116; 69 C.J. 967, par. 2158; 69 C.J. 971, par. 2162; 18 A. E. Enc. 743, 745.
It is apparent from all of the testimony in this case that John P. Wilson used no part of the thousand dollars bequeathed to him, and by the terms of the will the entire sum became the property of Marvin Wilson. This was the decree of the chancellor and we believe that the decree should be affirmed.
Argued orally by W.I. Stone, for appellant.
The estate of W.M. Wilson was being administered under his will in the Chancery Court of Yalobusha County. The estate of his brother, John P. Wilson, was being administered under his will in the Chancery Court of Montgomery County. They had a nephew Marvin Wilson. Item 5 of the will of W.M. Wilson is in this language:
"5. I will and bequeath to my brother John P. Wilson, One Thousand Dollars ($1,000.00), and at his death if any part thereof remains unused by him I will and direct that it shall become the property of my nephew Marvin Wilson."
The question in the case is whether this $1,000 legacy belongs to the estate of John P. Wilson or the nephew Marvin Wilson. The solution of that question depends on whether it remained "unused" by the former at the time of his death. In his will W.M. Wilson disposed of his entire estate. His will was executed on the 10th day of December, 1940, and he died the next day. It was probated on the 14th day of December, 1940. On about the 2nd of January, 1941, John P. Wilson filed a contest claiming that the will was void because his brother was mentally incapable of making one and that it violated the Mortmain statute. Within a few hours thereafter John P. Wilson died. He, therefore, survived his brother, W.M. Wilson, less than a month. Later the executrix of John P. Wilson withdrew the contest. On the 15th of December, 1941, the executor of W.M. Wilson filed his final account and with it a petition making all the legatees and devisees under the will parties, and in addition the executrix of the will of John P. Wilson. In the petition it was set out that John P. Wilson during his lifetime used no part of the $1,000 disposed of in Item 5, and therefore it belonged to the nephew Marvin Wilson. The latter answered the petition making the same claim; while the executrix of John P. Wilson set up in her answer that it belonged to her testator and therefore she was entitled to receive it and administer it as a part of his estate, and that the Chancery Court of Yalobusha County was without authority under the law to decide that question. In her answer there is no allegation that the $1,000.00 legacy had been used in whole or in part by her testator during his lifetime.
Section 352, Code of 1930, is in this language: "The court in which a will may have been admitted to probate, letters of administration granted, or a guardian may have been appointed, shall have jurisdiction to hear and determine all questions in relation to the execution of the trust of the executor, administrator, guardian, or other officer appointed for the administration and management of the estate, and all demands against it by heirs at law, distributees, devisees, legatees, wards, creditors, or others; and shall have jurisdiction of all cases in which bonds or other obligations shall have been executed in any proceeding in relation to the estate, or other proceedings, had in said chancery court, to hear and determine upon proper proceedings and evidence, the liability of the obligors in such bond or obligation, whether as principal or surety, and by decree and process to enforce such liability."
Under the statute the Chancery Court of Yalobusha County and not the Chancery Court of Montgomery County had the right in the administration of the estate of W.M. Wilson to decide to whom this legacy belonged. The chancellor held that it belonged to the nephew Marvin Wilson, and we are of opinion he was correct in so holding.
The evidence showed without conflict that no part of the $1,000 was paid to John P. Wilson in cash during his lifetime, nor was there any evidence that he had obtained credit on the faith of that bequest, if that would have been using it, which we do not decide. His executrix does not so allege in her petition nor does she offer any evidence to that effect.
Affirmed.