Byrd v. Wallis

• Decision Date: 06 June 1938
• Docket Number: 33259
• Citation: 181 So. 727,182 Miss. 499
• Court: Mississippi Supreme Court
• Parties: BYRD v. WALLIS et al

181 So. 727

182 Miss. 499

BYRD v. WALLIS et al

No. 33259

Supreme Court of Mississippi

June 6, 1938

Division A

1 WILLS.

A testamentary gift made to beneficiaries by name is not a ''gift to a class'' even if the individuals named possess some quality or characteristic in common.

2 WILLS.

A provision in a will directing that testator's property be ''equally divided'' among designated persons should be construed by the courts as an indication of an intent to make a gift to individuals and not to the legatees as a class.

3 WILLS.

Where a bequest is made to members of a class, the class is subject to be opened up to let in members, if any, who may afterwards come into existence before the date for the ascertainment of the members of the class.

4 WILLS.

Under a will bequeathing specific residuary legacies to named nephews and nieces and other relatives by blood and marriage, a gift of the residuum directing that it be divided ''equally among my relatives whose names are mentioned in this will'' was a gift to named legatees as individuals and was not a ''gift to a class'' with the right of survivorship among the members thereof as joint tenants, particularly where testatrix directed that two specific legacies should pass to the heirs of the body of the legatees instead of surviving to other named legatees.

5. WILLS.

In absence of statute, the lapsed portion of a residuary devise or legacy does not inure to the benefit of the other residuary devisees and legatees under residuary devise or bequest to several persons, named, or in common, and not as a class, unless testator's indication to that effect clearly appears, but that that portion is removed from the operation of the residuary clause and becomes intestate estate passing to heirs or distributees.

6. WILLS.

The rule that a lapsed devise or bequest of personalty does not descend to an heir at law as property undisposed of by will but passes into the residuum applies only to a specific devise which falls into the residuum and not to a lapsed portion of the residuum itself.

7. WILLS.

Though a testator's intention to dispose of all of his estate may appear from the face of a will, if a condition later arises which was clearly not contemplated by testator, the courts have no power to amend will by attempting to supply the omission, and, if testator has overlooked a condition which he would perhaps have provided for if it had occurred to him, the courts cannot guess at what provisions he would probably have made if he had thought of it.

8. WILLS.

Courts cannot supply a provision in a will and then proceed to give it the desired effect, but there must be some language used and to be construed on the point at issue for a court to render assistance by construction in effectuating the intention of a testator.

9. WILLS.

A residuary legacy bequeathed to a legatee who predeceased testatrix did not pass into the residuum but lapsed and descended as property undisposed of by will to testatrix' sole surviving sister of the whole blood as heir at law, where testatrix knew that legatee had predeceased her and failed to amend will to dispose of that legacy and so prevent it from descending as intestate property.

10. WILLS.

Under will bequeathing a specific residuary legacy to testatrix' blood nephew who predeceased her and his wife and directing that residuum be divided equally among relatives whose names were mentioned in will, nephew's wife was a ''relative'' as well as a joint tenant with respect to the specific legacy and residuary share, and she was entitled to one residuary share, counting as one share the indivisible portion which would have gone to her and nephew if he had also survived testatrix.

HON. R. E. JACKSON, Chancellor.

APPEAL from the chancery court of Coahoma county, HON. R. E. JACKSON, Chancellor.

Proceedings by J. O. Wallis, Sr., executor, for the construction of the last will and testament of Martha "Mattie" Moss Johnson, deceased. From a decree construing the will, Emma Moss Byrd, a legatee, appeals. Affirmed in part and reversed in part, and cause remanded.

Affirmed in part; reversed in part, and remanded.

Roberson, Cook & Luckett, of Clarksdale, for appellant.

The gift of the residuum was to the relatives of Mrs. Johnson individually and not as a class.

Page on Wills (2 Ed.), sec. 918; Jarmon on Wills, (6 Ed.), sec 336.

The only universal rule for determining whether testamentary gifts to several persons are gifts to them as a class or as individuals is to ascertain the intention of the testator. As aids to that, certain features, including the particular language of the will and the relationship of the parties, may be considered. The decisive inquiry is whether or not the testator was looking to a body of persons as a whole to take the property described. If so, they take as a class. If not, they take as individuals. The feature to which the greatest importance is attached is the manner in which the beneficiaries are designated. If the gift is made to beneficiaries by name, the gift is not one to a class, even if the individuals who are named possess some quality or characteristic in common.

Page on Wills (2 Ed.), sec. 921; Marx v. Hale, 131 Miss. 290, 95 So. 441; 21 Ann. Cas. 415; Boynton v. Boynton, 266 Mass. 454, 165 N.E. 489; In re Rochester Trust & S.D. Co., 129 Misc. 318, 222 N.Y.S. 256; Lincoln Trust Co. v. Adams, 107 Misc. 639, 177 N.Y.S. 889; Griffith's Will, 172 Wis. 630, 179 N.W. 768; Re Bauman, I Ont. Week. N. 293; Re James, 16 Ont. Week. N. 87; Bill v. Payne, 62 Conn. 140, 25 A. 354; In re Deming, 106 Misc. 133, 174 N.Y.S. 172; R itch v. Talbot, 74 Conn. 137, 50 A. 42; Proctor v. Smith, 8 Bush 81; Perry v. Leslie, 124 Me. 93, 126 A. 340; Strout v. Chesley, 125 Me. 171, 132 A. 211; Horton v. Earle, 162 Mass. 448, 38 N.E. 1135; Hobbs v. Chesley, 251 Mass. 155, 146 N.E. 261; Sleeper v. Larrabee, 266 Mass. 320, 165 N.E. 121; Romjue v. Randolph, 166 Mo.App. 87, 148 S.W. 185; Stetson v. Kinch, 92 N.J.Eq. 362, 112 A. 847; Redmond v. Gummere, 94 N.J.Eq. 216, 119 A. 631; McDonald v. McDonald, 71 A.D. 116, 75 N.Y.S. 675; Williams v. Alt, 226 N.Y. 283, 123 N.E. 499; Re Briggs, 131 Misc. 720, 228 N.Y.S. 652; Todd v. Trott, 64 N.C. 280; Abbey's Estate, 28 Pa. Dist. R. 59; French's Estate, 9 Pa. D. & C. 63; Re Whiston, 93 L. J. Ch. (N.S.), 113; Re Bentley (1914), W. N. 88.

Whether or not beneficiaries belong to what might be termed a natural class is frequently considered of significance in determining whether they take as a class or as individuals.

Strout v. Chesley, 125 Me. 171, 132 A. 211; Sleeper v. Larrabee, 266 Mass. 320, 165 N.E. 121; Aitken v. Sharp, 93 Eq. 336, 115 A. 912; Lincoln Trust Co. v. Adams, 107 Misc. 639, 177 N.Y.S. 889; Abbey's Estate, 28 Pa. Dist. R. 59; Pierce's Estate, 177 Wis. 104, 188 N.W. 78; Re Chaplin, 33 L. J. Ch. (N.S.) 183; Re Scorer, 94 L. J. Ch. (N.S.) 196; Shannon v. Eno, 120 Conn. 77, 179 A. 479; Meserve v. Haak, 191 Mass. 220, 77 N.E. 377; Smith v. Haynes, 202 Mass. 531, 89 N.E. 158; Parker v. Glover, 42 N.J.Eq. 559, 9 A. 217.

The words "share and share alike" always import a distributive interest or a tenancy in common, and not a joint tenancy or survivorship.

Re Myers, 98 Misc. 108, 162 N.Y.S. 119; Loeser's Estate, 2 Pa. D. & C. 250; Shannon v. Eno, 120 Conn. 77, 179 A. 479; In re Gibson, 2 Johns & H. 656, 70 Eng. Repr. 1222.

In the following cases, bequests to legatees "before named" or "above mentioned" were held to be gifts to individuals:

Kerr v. Dougherty, 59 How. Pr. 44, 17 Hun. 341, 79 N.Y. 327; Collins v. Johnson, 8 Sim. 356, note, 59 Eng. Reprint 141, note Re Gibson, 2 Johns & H. 656, 70 Eng. Repr. 1222; McIntosh v. Ontario Bank, 19 Grant, Ch. 155, 20 Grant, Ch. 24; Huddy's Estate, 257 Pa. 528, 101 A. 818; In re Clark, 197 N.Y.S. 824; Wooten's Appeal, 239 Pa. 385, 86 A. 877; Orford v. Orford, 1 Ir. R. 121; Doe ex dem. Kean v. Roe, 2 Harr. 103, 29 Am. Dec. 336; Burrell v. Baskerfield, 11 Beav. 525, 50 Eng. Repr. 920; Carroll v. Carroll, 248 Ky. 386, 58 S.W.2d 670; Kean's Lessee v. Hoffecker, 29 Am. Dec. 336; 21 Ann. Cas. 412.

The language of the will with reference to the principle now under discussion is clear and unambiguous, and to the language we look for the intention of the testator.

National Bank of Greece v. Savarika, 167 Miss. 571.

It does not seem to us that it can reasonably be disputed that Mrs. Johnson, by the specific reference to her "relatives whose names are mentioned" in her will, as fully, individually and personally designated those who were to take the residue of her estate as if she had repeated their several names. Her will must be construed as if those names had been so repeated. Her residuary estate was clearly given to individuals.

A lapsed devise or bequest descends to the heir at law as property undisposed of by will.

National Bank of Greece v. Savarika, 167 Miss. 571; Marx v. Hale, 131 Miss. 290, 95 So. 441; Morris v. Henderson, 37 Miss. 507; Ryals v. MePhail, 154 Miss. 295, 122 So. 493; 28 R. C. L. 338 and 339, sec. 331; Torre v. Chestnut, 74 A.L.R. 540; Corbett v. Skaggs, 28 A.L.R. 1237; Worcester Trust Co. v. Turner, 210 Mass. 119, 95 N. B. 132; Hastings v. Earp, 62 N.C. 5; Winston v. Webb, 62 N.C. 1, 93 Am. Dee. 599.

Brewer & Montgomery and Chas. A. Sisson, all of Clarksdale, for appellees, Louise Moss Montgomery, Robert Moss Montgomery, Martha Louis Montgomery, Edwina Montgomery, and Herman Moss.

The residuary legatees take as a class in equal shares, and only those living at the time of the death of testatrix may participate in the fund.

The case of Branton v. Buekley, 99 Miss. 116, 54 So. 850, in all essential details is controlling.

The only distinction (and this is not a legal one) between ...