Brown v. Franklin
| Decision Date | 07 April 1930 |
| Docket Number | 28542 |
| Court | Mississippi Supreme Court |
| Parties | BROWN v. FRANKLIN |
1 WILLS. Construction. Life estate.
Under will bequeathing all testator's property to B., and providing she was to enjoy income until her death, she took life estate. The will read in part as follows:
2 WILLS. Construction. Bequest of income. Life estate.
Bequest of income of personal property is gift of life estate.
3 WILLS. Construction. Intent. Meaning of phrase. Consideration of context. All provisions.
Court must determine meaning of phrase of will by consideration of context and all provisions, and determine testator's intention, if possible.
4. WILLS. Construction. Life tenant's right.
Direction that on first taker's death all property "will" be given to nephew did not give life tenant right to diminish corpus of estate.
5. WILLS. Construction. Words of desire.
Words of desire, used to declare manner of disposition of testator's property, are binding on court in distribution of estate.
6. EXECUTORS AND ADMINISTRATORS. Executor's bond. Statute. Construction.
Statute relating to requiring executor to give bond where testator states none is required is not for benefit of creditors only (Hemingway's Code 1927, section 1751.)
7. EXECUTORS AND ADMINISTBATORS. Executor's bond. Will not requiring.
Executrix who was life tenant under will, and who asserted absolute estate in all of property bequeathed, held properly required to give bond, notwithstanding testator's diction no bond was required (Hemingway's Code 1927, section 1751.)
HON. T. P. GUYTON, Chancellor.
APPEAL from chancery court of Lowndes county HON. T. P. GUYTON, Chancellor.
Suit by Malcolm A. Franklin, a minor, against Mattie Lou Brown, executrix of the will of Malcolm A. Franklin, deceased. From the decree, defendant appeals. Affirmed.
Decree affirmed.
John F. Frierson, of Columbus, for appellant.
Where testator relieved executrix from giving bond, filing inventory and having appraisement made, the court should not require that such acts be performed by the executrix.
Martin v. Martin, 69 Miss. 315, 13 So. 267; Hill v. Goodwin, 114 Miss. 324, 75 So. 122; Rife v. Rife, 122 So. 739; Rowe's Executors v. White, 16 N.J. Equity 411, 84 A. D. 169; Equitable Trust Company v. Pennetto (Del.), 142 A. 827.
If the instrument by which the life estate is created gives the life tenant the power to encroach on the principal at discretion, no security will be exacted.
Sec. 1751, Hemingway's Code 1927, is entirely for the benefit of the creditors of the estate when it comes to a matter of a beneficiary or legatee, the testator is the sole judge of what he wants to do and how he wants it done.
The matter of exacting security is regarded as discretionary with the court, for the testator having directed that the life tenant have possession of, and management of, the property without suggesting indemnity, the fair inference seems to be that none was necessary. Generally, before making an order for such security, there must be facts alleged and proved tending to show the property would be unsafe and unsecure in the hands of the life tenant.
Scott v. Scott, 137 Iowa 239, 114 N.W. 881; Barmore v. Gilbert, 106 S.E. 269, 14 A.L.R. 1060.
Will . . . as an auxiliary verb indicates a time in the future. It is executory rather than executed in its meaning, and has not the same imperative force as the word shall.
40 Cyc. 1950; State v. Hilsbeck, 132 Mo. 348, 359, 34 S.W. 38; McGarigle v. Roman Catholic Orphan Asylum, 145 Cal. 694, 1 L.R.A. (N.S.) 315.
Where an estate is devised in one part of a will in clear and decisive language such estate cannot be cut down or taken away by any subsequent words unless they are equally clear and decisive with the words used in creating the estate. The absolute devise or bequest stands, and the other clause is to be regarded as presenting precatory language. The will must be interpreted to invest in the devisee or legatee the fee-simple title to the land or the absolute property in the subject of bequest.
Bills v. Bills, 8 L.R.A. 696, 697; 2 Redfield on Wills, p. 423; 1 Thompson on Real Property, p. 721.
Owen & Garnett, of Columbus, for appellee.
A bequest of the income of personal property is a gift of a life estate. In the gift of a mere life estate in personalty, with remainder over, there is no implication that the beneficiary may spend or diminish the principal. A gift of income is absolute, so far as the income is concerned, unless its use be limited. If the use of the income be not limited, it belongs to the legatee absolutely; and in the fund he has a life estate but without the right to expend it.
Lucas v. Lockhart, 10 S. & M. 466; 3 Alexander on Wills, p. 1421.
The word will in testamentary instruments, is given the effect of an imperative direction as distinguished from words of recommendation and request, and is distinct from the word wish.
2 Alexander on Wills, p. 1592; Carson v. Turrish, 168 N.W. 349; McRee's Administration v. Means, 34 Ala. 349, 365; Bliven v. Seymore, 88 N.Y. 469; Major v. Herndon, 78 Ky. 123; Line v. Darden, 5 Fla. 51, 72; Cockrill v. Armstrong, 31 Ark. 580; McMurry v. Stanley, 6 S.W. 412; 1 Perry on Trusts (5 Ed.), 127.
Words of desire, or other similar expressions, when used for the purpose of declaring the manner of the disposition of the testator's property after his death, and not as a request or prayer directed to the devisee or legatee concerning the devise or legacy given him, are words commanding disposition and are testamentary in character. They are not precatory, but of positive direction and binding upon the court in the distribution of the estate.
2 Alexander on Wills, p. 1579; Lohmuller v. Mosher, 87 P. 1140; Mee v. Gordon, 187 N.Y. 400.
There is nothing in the law of Mississippi which authorizes a testator to dispense with the filing of an inventory by the executor.
Sec. 1779, Hemingway's Code 1927; Sec. 1751, Hemingway's Code 1927; 23 C. J. 1168 (384); 11 R. C. L. 104; Hayes v. Welling, 85 A. 630; In re Higgins, 39 P. 506; Chase v. Matthews, 12 La. 357; Potter v. McAlpine (N.Y.), 3 Dem. Surr. 108.
While section 1751, Hemingway's Code 1927, recognizes a right in the testator to waive the executor's bond, the right is not absolute, but is a qualified right, subject to the power of the court or the clerk, at the time of granting letters, or afterwards, to require bond if he shall have reason to require bond.
Code of 1892; Code of 1880, sec. 1982; Sec. 1110 of the Code of 1871; Art. 54, Code 1857, p. 436; Hutchinson's Code, 653 (34).
Argued orally by Jno. F. Frierson, for appellant, and by C. L. Garnett, for appellee.
Malcolm A. Franklin died in Lowndes county, Mississippi, leaving a last will and testament reading as follows:
This will was duly admitted to probate in Lowndes county by the chancery clerk, in vacation, and letters testamentary were issued by him to Miss Mattie Lou Brown, the executrix named in the will, no bond having been required of her. She made no inventory of the estate, and at the next or succeeding term of the chancery court, Malcolm A. Franklin, a minor, by Mrs. Estelle O. Franklin, his mother and next friend, filed a petition alleging, in substance, that the decedent's estate consisted of stocks, bonds, and jewelry, which he kept in a lock box in the Columbus National Bank, and money in bank; and charged, upon information and belief, that the executrix had taken possession of the estate, and had disposed of valuable diamonds, jewelry, and other personal property consisting of furniture, etc.; that she had said she would not file an inventory, and that, if necessary, she would use the corpus of the estate for her private use and purposes, notwithstanding the fact that under the will she was to enjoy only the income for life; that the executrix had only a life estate in the property, and at her death it would go to the minor petitioner; that the petitioner believed it was for his best interest for the court to protect the estate, otherwise it would be dissipated, and he would be deprived of the enjoyment and use of the estate so bequeathed to him. The petition prayed that an order be granted prohibiting the Columbus National Bank from paying out any money on the checks of the administratrix or allowing any withdrawals from the lock box in which the assets of the estate were deposited; that the executrix be required to file an inventory and give a bond for the preservation of the estate; and that appraisers of the estate be appointed, who, together with the executrix, should be permitted to have...
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