Anderson v. Gift

• Decision Date: 10 March 1930
• Docket Number: 28462
• Citation: 156 Miss. 736,126 So. 656
• Court: Mississippi Supreme Court
• Parties: ANDERSON v. GIFT et al

126 So. 656

156 Miss. 736

ANDERSON v. GIFT et al

No. 28462

Supreme Court of Mississippi

March 10, 1930

Division A

Suggestion of Error Overruled March 17, 1930.

APPEAL from chancery court of Alcorn county HON. CHAS. S. MITCHELL Chancellor.

Suit by John M. Gift and others against F. F. Anderson. From the decree, defendant appeals. Affirmed.

Section 269 of the Constitution of 1890 reads as follows:

"Every devise or bequest of lands, tenements, or hereditaments, or any interest therein, of freehold or less than freehold either present or future, vested or contingent, or of any money directed to be raised by the sale thereof, contained in any last will and testament, or codicil, or other testamentary writing, in favor of any religious or ecclesiastical corporation, sole or aggregate, or any religious or ecclesiastical society, or to any religious denomination or association of persons, or to any person or body politic, in trust, either express or implied, secret or resulting, either for the use and benefit of such religious corporation, society, denomination or association, or for the purpose of being given or appropriated to charitable uses or purposes, shall be null and void, and the heir at law shall take the same property so devised or bequeathed, as though no testamentary disposition had been made."

Affirmed.

Conn & Conn, of Corinth, for appellant.

The devise of land, or the bequest of its proceeds for charitable purposes was void, and as to same the decedent was intestate.

Sec. 269, Mississippi Constitution; Barton v. King, 41 Miss. 289; Blackburn v. Tucker, 72 Miss. 735; Greely v. Houston, 148 Miss. 799.

Equitable conversion is a generally accepted doctrine in all Equity Courts.

Craig v. Leslie, 4 Law Ed. 460.

The testator converted his realty into personalty and this is shown by two facts:

1. By commingling of realty and personalty.

Knotts v. Bailey, 54 Miss. 238; Lewis v. Darling, 14 Law Ed. 823; Turner v. Turner, 57 Miss. 778; Cady v. Cady, 67 Miss. 431-2.

2. By devise to trustees for purpose of sale, with order to sell.

Mahorner v. Hooe, 9 S. & M. 247; Peter v. Beverly, 9 Law Ed. 535; Bates v. Strickland, 103 So. 434; 13 C. J. 875; Hutchins v. Davis, 174 N.E. 251; Arnold v. Gilbert, 5 Barb. 190; Lash v. Lash, 70 N.E. 1049; Evans' Appeal, 63 Pa. 183; Hodges Estate, 5 Pa. Co. Ct. 283; Craig v. Leslie, 4 Law Ed. 460; Harrington v. Pier, 50 L.R.A. 307.

Ordinarily, the testator is presumed to intend that his property go to his devisees, or heirs in case of partial intestacy, in the more favored form of land, if the purpose of conversion fails. No room for this presumption in this case; for this will was published in 1923, and the law enabling collaterals to inherit from illegitimates was not passed until 1924.

Laws of 1924, chap. 162.

When there is an equitable conversion by will of testator, then the "converted money" would be the primary source of funds with which to pay debts.

13 C. J. 881.

The testator cast the burden of paying his debts and pecuniary legacies upon his intestate realty, by expressly bequeathing all his personalty.

Gordon v. James, 86 Miss. 719; Rainey v. Rainey, 124 Miss. 780; Evans v. Fisher, 40 Miss. 643.

The bequest to schools was general and not residuary in its nature, and of the same rank as the general pecuniary bequests.

28 R. C. L., Wills, sec. 272; 55 Am. Rep. (La.) 304; Robards v. Wortham, 22 A. D. (N. C.) 741; Kelly v. Richardson, 13 So. 785.

Intestate land will be used to pay debts ahead of expressly bequeathed personalty:

28 R. C. L. Wills, sec. 279; 11 R. C. L., Ex. & Ad., sec. 133; Hope v. Wilkinson, 52 Am. Rep. (Tenn.) 149; Earle v. Coberly, 17 Ann. Cas. (W. Va.) 479; French v. Vradenburg, 115 A. S. R. (Va.) 838; Strode v. Strode, 280 S.W. 921; In Re Hall's Estate, 190 P. 364; In Re Bradley's Will, 3 Ann. Cas. (Wis.) 716; Kelly v. Richardson, 13 So. 793; Robards v. Wortham, 22 A. D. (N. C.) 740; Pomeroy's Equity Jurisprudence (2 Ed.), 1135; 19 A. & E. Enc. Law (2 Ed.), 1302-1313; 40 Cyc. 2006; 3 Jarman on Wills, 527.

Sec. 270 of the Constitution of 1890, is not the bestowal of a power but the recognition of a right antedating the Constitution, and the fancied policy of section 269 should not be permitted to outweigh the real vital substance of section 270.

A religious organization can be the legatee of the proceeds of the sale of land ordered by the will to be sold, although it could not take a devise of the land itself.

13 C. J. 883; Willett v. Willett, 31 A.L.R. (Ky.) 426; West Va. Pulp Co. v. Miller. 100 C. C. A. 176.

The testator, by requiring his debts to be paid by trustees, and then giving them some land without valid directions as to the disposition of the proceeds, by implication, cast the burden of paying the debts upon his intestate land, or the proceeds of its sale.

40 Cyc. (4), page 2072; 28 R. C. L., Wills, sec. 288.

The invalid direction to use proceeds of the sale of land for a charitable purpose does not supersede the implied direction to pay debts with it.

28 R. C. L., Wills, sec. 169; 40 Cyc. 1417; 28 R. C. L., Wills, sec. 158; 40 Cyc., page 2073, note 39.

W. C. Sweat, of Corinth, for appellees.

Section 269 of the Constitution of the state of Mississippi declares null and void every devise or bequest of lands, or of any money directed to be raised by the sale thereof, contained in a last will and testament in favor of any religious denomination, or association of persons, or of any person, or body politic, in trust, either express or implied, or for the purpose of being given or appropriated to charitable uses and purposes, and not only makes void any such attempted devise, or bequest, but fixes absolutely a right of property in the heir of the testator to such property.

Section 3578 of Hemingway's Code of 1927; Blackburn v. Tucker, 72 Miss. 735, 17 So. 737; Hailey v. McLaurin's Estate, 112 Miss. 705, 73 So. 727; Maas v. Sisters of Mercy of Vicksburg, 135 Miss. 505, 99 So. 468; Wheat v. Lacals, 139 Miss. 300, 104 So. 73; Greely v. Houston, 148 Miss. 799, 114 So. 740.

Under a will which attempts to devise the real estate in violation of section 269 of the Constitution, there is no equitable conversion of such real estate into personalty.

Greely v. Houston, 148 Miss. 806; 13 C. J., p. 873, sec. 51; Pomeroy's Equity Jurisprudence (3 Ed.), sec. 1166; Painter v. Painter, 220 Pa. 82, 69 A. 323, 20 L.R.A. (N.S.) 117; In re Reed, 237 Pa. 125, 85 A. 138; DeLashmutt v. Teetor, 261 Mo. 412, 169 S.W. 34; Tichenor v. Bank (N.J. Eq.), 125 A. 325; Fairfield v. Van Wyck, 94 Va. 557, 64 Am. St. Rep. 745; Moore v. Kernachan, 133 Va. 206, 102 S.E. 632; Patterson v. Reed, 260 Pa. 319.

The personal estate of every character vests in the executor or administrator for the payment of debts and charges the real estate in the hands of the heir, on the contingency that the decedent has not left sufficient personal estate to pay his debts. The title of the land vested in the heir, immediately on the death of the ancestor.

Evans v. Fisher, 40 Miss. 686; Bullock v. Sneed, 13 S. & M. 294; Thompson v. Thomas, 30 Miss. 155; Brewster v. Gage, 74 L.Ed. (Adv. Sheets) 184.

In the payment of debts and legacies of a decedent, whether he died testate or intestate, or partially testate, and partially intestate, the personalty must be first exhausted before any part of the realty can be applied to the payment thereof, unless there is a plain direction in the will to charge the real estate therewith, either by express direction, or necessary implication.

Sec. 1796 of Hemingway's Code of 1927; Secs. 1811-1812 of Hemingway's Code of 1927; Gordon v. James, 86 Miss. 750; Cady v. Cady, 67 Miss. 431; Knotts v. Bailey, 54 Miss. 238; Evans v. Fisher, 40 Miss. 666; Pinson v. Williams, 23 Miss. 67; Turner v. Ellis, 24 Miss. 173; Lee v. Gardener, 26 Miss. 521; Payne v. Pendelton, 32 Miss. 323; Root v. McFerrin, 37 Miss. 16; Stigler v. Porter, 42 Miss. 449; Webster v. Parker, 42 Miss. 465; Holman v. Bennett, 44 Miss. 322.

The residue of an estate may be defined as that which remains after discharging all legal and testamentary claims on the estate, or as that which is left after the payment of charges, debts and particular legacies. While no particular form of words is requisite to constitute a residuary clause, it must appear to have been the intention of the testator that the residuary legatee should take the residue of the estate after the payment of debts, and meeting all the appointments of the will.

28 R. C. L., sec. 272, p. 296; Alexander on Wills, sec. 669; Schouler on Wills, sec. 1143.

Lands descended to the heir are applicable to the payment of debts in exoneration of all but residuary legacies, or of lands specifically devised for such payment.

28 R. C. L., p. 128, sec. 133; Pomeroy's Equity Jurisprudence (2 Ed.), sec. 1135; Pomeroy's Equity Jurisprudence (3 Ed.), note under 1135; Evans v. Fisher, 40 Miss. 643; Robert v. Wortham, 22 Am. Dec. 738; 40 Cyc., pages 2011 to 2013.

Argued orally by W. D. Conn, for appellant, and by W. C. Sweat, for appellee.

OPINION

McGowen, J.

John M Gift and a great number of others filed their bill in the chancery court of Alcorn county as the next of kin and heirs at law of J. E. Gift, deceased, against F. F. Anderson, as trustee. The bill alleged that the said decedent died, leaving no children or descendants of children, no wife, no father or mother, no brother or sister, no uncle or aunt, surviving him, and that his next of kin were his first cousins and the descendants of said first cousins. The bill averred that J. E. Gift departed this life seized and possessed of a considerable estate, both real and personal, and specifically described certain lands as belonging to the...