Estate of Blount v. Papps

• Decision Date: 03 December 1992
• Docket Number: No. 90-CA-1001,90-CA-1001
• Parties: ESTATE OF Joe Eron BLOUNT: Eva Blount Penick, Individually and as Executrix; Mary Blount Walker, Dorothy Blount Funderburke and James Blount v. Sandra W. PAPPS, as Conservator of Ava Frances Blount.
• Court: Mississippi Supreme Court

Page 862

611 So.2d 862

ESTATE OF Joe Eron BLOUNT: Eva Blount Penick, Individually and as Executrix; Mary Blount Walker, Dorothy Blount Funderburke and James Blount v. Sandra W. PAPPS, as Conservator of Ava Frances Blount.

No. 90-CA-1001.

Supreme Court of Mississippi.

Dec. 3, 1992.

Rehearing Denied Feb. 11, 1993.

John P. Fox, Houston, for appellant.

Trent L. Howell, Water Valley, for appellee.

Before ROY NOBLE LEE, C.J., and BANKS and McRAE, JJ.

BANKS, Justice, for the Court:

Here we are urged to overturn the lower court's construction of a testator's will which found that the testator intended to leave his wife fee simple title in all his monetary assets, note payments, and all other personal property to the exclusion of the testator's children by a former marriage. Finding that the chancellor applied the law appropriately and had a substantial basis in the evidence for his findings of fact we affirm.

I.

This case came before this Court from the Yalobusha County Chancery Court. There, Sandra W. Papps, Conservator of the widow, Ava Frances Blount, filed a petition seeking construction of the will of her deceased husband, Joe Blount. Ava sought to have the court construe that Blount left her a fee simple title to all his personal property. Blount's natural children, Ava's stepchildren, along with the First Baptist Church, filed a response, contending that Ava received only a life estate to the personal property and that upon her death, the estate is to pass to them. The pertinent language in the will is:

Paragraph 3: I then will, devise and bequeath to my wife Ava Francis Blount, a life estate in all of the real property that I own at my demise, for my wife to have the use, rents and profits from all of my real property. I will, give and devise unto my wife, ... all of my personal property of every kind whatsoever and wheresoever located to have and use and dispose of as she sees fit.

Paragraph 4: Then at the termination of the life estate of my wife, ... I will, give, devise and bequeath unto our children: Mary Blount Walker, Dorothy Nell Blount Funderburke, and Eva Joe Blount Penick, a one-fourth interest each of my real, personal and mixed property, whatsoever and wheresoever located, to share and share alike.

Paragraph 5: I then, will, devise and bequeath unto Turkey Creek Church, Calhoun County, Mississippi, a one-eighth interest, and the First Baptist Church, Water Valley, Mississippi, a one-eighth interest of my property, real, personal and mixed, whatsoever and wheresoever located.

The chancellor found that Ava took a fee simple title in and to all of Blount's money, note payments, and all other personal property to the exclusion of the children of his first marriage and the churches, subject only to the payment of debts and administrative fees and expenses. Additionally, the chancellor found portions of Blount's will, namely paragraphs 4 and 5, indefinite and unclear because they conflicted with the clear, decisive and unambiguous language of paragraph 3. Moreover, the chancellor held:

Under paragraph 3 the decedent devised a life estate to his wife, Ava ... in and to all of his real property. In the second sentence in paragraph 3, he then bequeathed all of his personal property, which would be the balance of his estate, to his wife, Ava to have and use and dispose of as she sees fit. The second sentence of paragraph 3 ... was an absolute bequest to Ava ... of all of the decedent's personal property in fee simple absolute, which would include everything he owned at the time of his death, including his interest in the promissory note executed by the Phillips. And, as there was no real property, with the exception of mineral interests, owned by [Blount] at the time of his death passing under the terms of [Blount's] will, the first sentence of paragraph 3 is of no effect.

The chancellor further held that paragraph 4 purported to give three of Blount's children a remainder interest in and to Blount's personal property, as well as his real property, which it could not do since Blount had already made an absolute gift of his personal property to Ava instead of a life estate.

Aggrieved, Eva Blount Penick, as executrix, along with the other children filed this appeal. The two churches have not joined in the appeal. The appellants raise the following issues:

I. Whether the intent of the testator has been ascertained and given effect by the Court with the Will construed (sic) which is most consistent with the testator's intent.

II. Whether the intent of the testator should control where the Will is ambiguous and the attorney that drafted the Will testified unequivocally that the intent of the testator was to create a life estate in his widow with the remainder to his natural children and his churches.

III. Whether the Court should adopt the construction that will render a charitable gift valid.

IV. In the alternative, whether the beneficiary who took benefits under a mutual will, should be estopped to repudiate the contract to leave the residue of the estate to the natural children and churches of the testator.

II.

Joe Blount was twice married. To his first union with Lillian Blount, six children were born; two are deceased and the remaining four are appellants in this case. In 1946, Joe divorced his first wife and shortly thereafter married Ava. There were no children born to this second marriage.

The Blounts owned a farm bordering on the Sharkey and Yazoo County line where they resided. In July 1960, Joe and Ava purchased fifty acres as tenants in common in Yalobusha County. On October 17, 1978, Joe executed a will which was attested by Ben Horan, the drafting attorney, and Charlotte Grass, Horan's secretary.

At trial, Grass testified that she only remembered bits and pieces of the execution of the will. She remembered that both Joe and Ava were present, but could not remember the actual execution of the will itself. Likewise, Horan's memory escaped him on certain matters. He was unable to recall whether Ava was present for the execution, but remembered that Joe's intent was to leave Ava the real and personal property during her life time with the property passing to the named beneficiaries at the termination of her life.

On December 29, 1978, the Blounts sold their farm to John F. Phillips, III and Chatham H. Phillips. As part of the consideration, the Blounts received a promissory note in the original principal amount of $293,270, bearing interest at the rate of eight (8%) percent per annum, and being payable in fifteen annual installments. The first installment was to be in the amount of $32,458.78 with the remaining successive payments in the amount of $34,258.06. The note was secured by a deed of trust on the farm.

The remaining assets of the Blount estate included $65,000 in certificates of deposit. The Blount's real property consisted of a house and lot located on one-and-one-half (1.5) acres of land. The Blounts held this land as tenants by the entirety with the right of survivorship by deed executed December 14, 1983, five years after the will in question. After Joe's death on February 3, 1989, Ava Blount remained on the property. The house was the only real property left at the time the Blounts executed the 1983 deed. All other property had been previously sold. By the time Joe died, Ava had suffered a stroke and was unable to serve as executrix as appointed by Blount. Consequently, Eva Blount, one of Joe's daughters, was appointed alternate executrix and Sandra Papps, Ava's relative by marriage, was appointed conservator.

III.

A.

As an initial matter, appellants contend that the chancellor's ruling overlooked two of the three dispositive paragraphs contained in the will, as well as Horan's testimony. According to the appellants, the most reasonable construction to effectuate Joe's intent and to give effect to all of the will's provisions would be to give Ava a life estate in the personal property. They contend that to do otherwise would ignore two paragraphs of the will, as well as oust the testator's natural children.

Ava asserts that the chancellor was correct in his findings that Joe bequeathed to her an absolute fee simple title in all his personal property in paragraph three; and that the less clear, less decisive, and ambiguous language contained in paragraphs four and five did not reduce her bequest to merely a life estate. The chancellor noted in his opinion that the life estate reference in paragraph three was limited to Blount's real property.

The appellants maintain that where there are inconsistent provisions in a will, or where the language in one part of a will is subject to a dual construction, the prevailing interpretation should be the one most consistent with the intent of the testator as ascertained by other provisions in the will. "The language used in a single clause or sentence should not control as against the evident purpose and intention of the testator as shown by the whole will." 57 Am.Jur. 735, Wills, Par. 1137. To support their proposition that less than a fee simple interest was granted by testamentary clauses, appellants cite Selig v. Trost, 110 Miss. 584, 70 So. 699 (1916). In Selig, the pertinent provisions of the decedent's will read:

First. I will and bequeath all the property of which I may die possessed, real, personal and mixed to my beloved wife, Crescentia, to use, enjoy and control the same and the proceeds thereof, with the full power to sell, mortgage and dispose of the same and to make good and perfect title thereto.

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 anyone 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...