Blackbourn v. Senatobia Educational Association

• Decision Date: 12 April 1897
• Court: Mississippi Supreme Court
• Parties: SARAH BLACKBOURN v. SENATOBIA EDUCATIONAL ASSOCIATION

21 So. 798

74 Miss. 852

SARAH BLACKBOURN v. SENATOBIA EDUCATIONAL ASSOCIATION

Supreme Court of Mississippi

April 12, 1897

March 1897

FROM the chancery court of Tate county HON. B. T. KIMBROUGH Chancellor.

The facts are stated in the opinion.

Affirmed.

W. J East, for appellant.

A judgment is conclusive only in matters directly in dispute and actually decided, and in order to prove these matters material, it must appear from the judgment that they were directly adjudicated. When a judgment is rendered, it only bars subsequent actions on matters actually settled by it. It does not matter if the judgment appears to determine other points; if it really does not, they are not barred. Any question incidentally considered, when irrelevant and not having any direct bearing upon the issue in the case, are not concluded. 21 Am. & Eng. Enc. L., 203. They (the issues), must have been relevant and pertinent to the case and within the pleadings. 21 Am. & Eng. Enc. L., 220. top of page.

G. D. Shands and N. A. Taylor, for appellees.

The position of appellees herein in resistance to the widow's application for a year's support, summarized, is as follows:

1. That said claim was included and settled in an agreed final decree in the chancery court rendered, September 5, 1895.

2. That if, for any reason, it should be held that the agreed decree, which has never been appealed from, nor effort made to have it reviewed, and if erroneous corrected, is not conclusive of this claim, then, for a number of other reasons, its rejection was proper. (a) The husband having amply provided, in his lifetime and out of his estate, for the wife's support, including the year succeeding his death, and then giving her, by will, all his exempt personal property, and more than that, and $ 200 in money, and declaring therein, in substance, that "she was amply provided for, " and these facts not being disputed, and that he "desired her to receive no more of this estate, " this is not a proper case for such an allowance to be made. (b) That if it is a proper case for such allowance, notwithstanding the provision made by the husband in his lifetime, for the widow's support, and if the allowance should have been made to her by the court, or the appraisers, even without her application therefor, and it was omitted or refused, she should have objected to the appraisement, and sought its correction or a new appraisement, before its approval, and before the discharge of the appraisers, who, under the law, were to make it; or, if not then, certainly before the sale of all the personal property of the estate.

We rest with entire confidence upon our first proposition, that the allowance sought is barred by the former decree.

In reference to our second proposition we will say: A husband, knowing what the law will do with his property after his death, for the wife's support, that appraisers will be appointed to allot her a year's support in provisions or money, he can anticipate such action, or the necessity for it, and, by his own provision for her, meet the virtual requirements of the law, and render action by the appraisers unnecessary. This was done by the will in this case. Am. & Eng. Enc. L., note 2, p. 63, citing Kersey v. Bailey, 52 Me., 198; Hollandale v. Pixley, 3 Gray (Mass.), 521; McManus' estate, 14 Phila. (Pa.), 660, where it was held that the widow may be barred by express words in her husband's will, and acceptance under it of gifts in place of the exemption. The widow in this case, by delay, waived her right to the year's allowance. Cook v. Sexton, 29 N. C., 307; Williams' appeal, 92 Penn., 71; Park v. Gleason, 46 Penn. St., 301; Hubbard v. Ward, 15 N. H., 78; Chandler v. Chandler, 6 So. 183 and cases therein cited; 33 Tex., 483; In re Machemer's estate, 21 Atl Rep., 441; Appeal of Kern's, 190 Pa. St. Rep., 523; Vanderroot's appeal, 43 Pa. St., 462; Davis' appeal, 34 Pa. St., 256.

OPINION

STOCKDALE, J.

A. L. Blackburn died in Tate county, at his home, November 1, 1893, leaving a will giving all his property, real and personal, except some small bequests, to the Senatobia Educational Association. Said will was probated by the chancery court of Tare county, and B. A. Tucker qualified as executor, who, as such executor, returned into court, on the seventeenth of November, 1893, an inventory and appraisement of said estate, which were approved at the March, 1894, term of said court, but a year's support was not set aside to the widow.

On December, 1893, Mrs. Sarah Blackbourn, the widow, and only surviving heir of A. L. Blackbourn, filed her bill or petition in said court, seeking to have the said will declared void. Said cause was numbered 1, 188 on the docket of said court. A demurrer being sustained to said petition, and the same dismissed, Mrs. Blackbourn appealed the cause to this court, where the said will was held to be inoperative and invalid as to that part devising real estate to said institution, but valid, and to be upheld, as to the bequest of personalty, and to that extent the decree of the court below was erroneous, and was reversed, the demurrer overruled and the cause remanded. 72 Miss. 735.

When the...