Cooper v. Simmons

• Decision Date: 07 December 1959
• Docket Number: No. 41302,41302
• Citation: 237 Miss. 630,116 So.2d 215
• Parties: Mrs. Cornelia COOPER, n.c.m. By Miss Bernice Simmons, Gd'n. v. William Donald SIMMONS et al.
• Court: Mississippi Supreme Court

Page 215

116 So.2d 215

237 Miss. 630

Mrs. Cornelia COOPER, n.c.m. By Miss Bernice Simmons, Gd'n. v. William Donald SIMMONS et al.

No. 41302.

Supreme Court of Mississippi.

Dec. 7, 1959.

Russell Wright, Meridian, for appellants.

Thos. K. Holyfield, Floyd, Cameron & Deen, Meridian, for appellee.

LEE, Justice.

This is an appeal by Miss Bernice Simmons, guardian of Mrs. Cornelia Cooper, n. c. m., from a decree of the Chancery Court of Lauderdale County which rejected her contention on the construction of the last will and testament of Mrs. Eugenia Shannon, deceased, that Mrs. Cooper was entitled to a one-half interest in the estate of the decedent.

The litigation arose out of these circumstances: Mrs. Cornelia Cooper, Mrs. Mamie S. Phillips and Mrs. Eugenia Shannon, sisters, were all widows and childless. Except for themselves as heirs of each other, their only next of kin and heirs were the five children of their deceased brother, William D. Simmons, to-wit, William Donald Simmons and four others.

On the day of the trial, that is November 24, 1958, Mrs. Cooper, the eldest of the sisters, was 81 years old. She lived in her home at Kewanee, about 17 miles from Meridian, and had an estate in stocks, bonds and cash of approximately $50,000. Mrs. Phillips, about two years younger than Mrs. Cooper, died July 17, 1957. Mrs. Shannon, the youngest, passed away on December 23, 1957. But, for several years prior to their deaths, these two sisters had lived together in Meridian.

Both Mrs. Phillips and Mrs. Shannon made and signed holographic wills dated February 4, 1955, and June 23, 1953, respectively.

The applicable provisions of Mrs. Phillips' will were as follows:

'II. I devise and bequeath unto my sister Eugenia S. Shannon all my estate both real and personal of which I may die seized and possessed.

'III. I hereby appoint my sister Eugenia Shannon as executrix without bond of my last will and testament, direct that she shall not be required to make any report to the courts touching my estate.

'IV. It is my desire that whatever part of my estate remaining in her possession at time of her death shall be divided equally between my brother William D. Simmon's five children.

'It is my wish that Joy Schmeirer have my diamond ring and other jewelry and that Constance Barbre Jr. have my silver.

'V. Should my sister Nelia Cooper be in need of assistance it is my earnest wish that some of my possessions be used for her relief.

'VI. In the event of the death of my sister Eugenia S. Shannon, I appoint Merchants and Farmers Bank of Meridian, Miss. to take charge of my estate and dispose of same as requested.

'Pray no trouble shall be experienced in adjusting these matters.'

The applicable provisions of Mrs. Shannon's will were as follows:

'II. I devise and bequeath unto my sister Mamie S. Phillips, all my estate, both real and personal, of which I may die seized and possessed.

'III. I hereby appoint my sister Mamie S. Phillips as executrix without bond of my last will and testament, direct that she shall not be required to make any reports to the courts touching my estate.

'IV. It is my desire that whatever part of my estate remaining in her possession at time of her death shall be divided equally between my brother Williams' five children.

'It is my wish that Constance Barbre, Jr. shall have my diamond ring and other jewelry, and Joy Scheirer have my silver knives, forks, spoons, etc.

'V. Should my sister Nelia Cooper be in need of assistance, it is my earnest wish that some of my possessions be used for her relief.

'VI. In event of the death of Mamie Phillips, I appoint Merchants & Farmers Bank of Meridian, Miss., to take charge of my estate and dispose of same as requested.

'Pray no trouble shall be experienced in adjusting these matters.'

Mrs. Shannon offered Mrs. Phillips' will for probate, and, on July 23, 1957, letters testamentary were issued to her. Notice to creditors was published, but the six month period for probating accounts had not expired nor had the estate been closed prior to her death.

The Merchants & Farmers Bank of Meridian, Mississippi, offered the will of Mrs. Shannon for probate, and on January 24, 1958, letters testamentary were issued to it. The estate, consisting of both real and personal property, was shown to be worth approximately $30,000.

The appellant contended in the court below and contends here that since Mrs. Phillips predeceased Mrs. Shannon, the estate theretofore willed to Mrs. Phillips by Mrs. Shannon lapsed and never came into existence. Consequently the estate must be dealt with in accordance with the laws of descent and distribution, and Mrs Cooper is entitled to a one-half interest therein.

The trial court rejected this contention and held that the five children of William D. Simmons, deceased, namely William Donald Simmons and four others, appellees, are entitled to all of the assets of the estate, subject to certain payments not here in dispute.

It was said in Low v. First National Bank & Trust Co., 162 Miss. 53, 138 So. 586, 80 A.L.R. 112, that courts cannot amend or reform a will; in National Bank of Greece v. Savarika, 167 Miss. 571, 148 So. 649, that the power of the courts is simply judicial; in Williams v. Gooch, 208 Miss. 223, 44 So.2d 57, that courts cannot add to or take from a will, or make a new one for the parties; in Rice v. McMullen, 207 Miss. 706, 43 So.2d 195, that the courts are concerned solely with the intention of the testatrix; in Cross v. O'Cavanagh, 198 Miss. 137, 21 So.2d 473, all provisions of a will must be considered and held to be valid and effective if reasonable; and in Palmer v. Crews, 203 Miss. 806, 35 So.2d 430, 4 A.L.R.2d 483, that a will is to be construed so as to avoid intestacy as to any of the testator's property, if it can be reasonably done.

Now in Selig v. Trost, 110 Miss. 584, 70 So. 699, the second provision of Selig's will was as follows: 'Second. After the death of my said wife, I desire and will that what remains of my said property shall be divided equally between my children, share and share alike; the share of any one who may be dead to go to his or her heirs. In no wise however to be construed to limit the power of my said wife over the said property or to prevent my said wife from selling or disposing of the same, or mortgaging the same or from using and enjoying the same or the proceeds thereof.' Mrs. Selig, who survived her husband, by will devised the property, which she had received from him, and her power to do so was the sole question for decision. The opinion then said: 'Taking the will by its four corners and construing it as a whole, it is clear that the testator did not mean to vest his wife with power to dispose of the property by will, but that what he did mean is simply this: That his wife should have the use and enjoyment of the property during her lifetime, with full power to mortgage or sell it, and that in...