Gidden v. Gidden

Citation167 So. 785,176 Miss. 98
Decision Date04 May 1936
Docket Number32186
CourtUnited States State Supreme Court of Mississippi
PartiesGIDDEN et al, v. GIDDEN

Division B

1. EXECUTORS AND ADMINISTRATORS.

Upon death of owner, personalty descends to personal representative for payment of debts and legacies, and realty goes to heirs and devisees and is not subject to debts until personalty is exhausted, unless will expressly provides otherwise (Code 1930, sec. 1643).

2 GIFTS.

Gifts made in contemplation of death during last illness of decedent of which he died held "gifts causa mortis."

3 EVIDENCE.

Courts take judicial notice of common knowledge in cotton trade that cotton in a compress is on its way to market and ultimately to textile mills, and that market and mills are often in other states or foreign countries.

4 GIFTS.

Where rights of citizens of state where property is situated are not involved, law of owner's domicile will govern its transfer by gift.

5. GIFTS.

Validity of attempted gift causa mortis made by decedent, who was resident of Mississippi, of cotton in compress located in sister state, and for which decedent held negotiable warehouse receipts, held governed by law applicable in Mississippi (Code 1930, sec. 3481 et seq.).

6. GIFTS. Wills.

Attempted gift causa mortis of cotton by delivery of deed thereto held not valid "gift causa mortis" because property itself was not delivered and donor had not surrendered all dominion over it, and hence cotton passed under terms of will executed prior to attempted gift.

7. WILLS.

Will which created trust for benefit of testator's mother, and which directed certain debt to be paid out of trust funds, held construable as intending that bequest to mother should be preferred over other specific bequests which were required to be first exhausted in payment of general debts.

8. WILLS.

"Demonstrative legacy" is a money gift charged on a specific fund and directed to be paid out of that fund, but becomes "general legacy" if fund is insufficient.

9. WILLS.

Legacies devised to certain of testator's brothers to be paid by trustee out of certain trust fund created in will held "demonstrative legacies" payable from trust fund if sufficient, and, if insufficient, payable from remainder of estate as "general legacies" subject to debts and specific legacies.

10. GIFTS. Wills.

Note written by testator telling his brother to get possession of cotton seed and, if anything should happen to testator, to sell the cottonseed to brother's best advantage, held too indefinite to constitute holographic will or executed gift.

11. EXECUTORS AND ADMINISTRATORS.

Widow's contract reciting that she waived right to renounce will of husband and take by inheritance held too indefinite to preclude widow from three thousand dollars as year's allowance provided by statute (Code 1930, sec. 1664).

HON. R. E. JACKSON, Chancellor.

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

Suit for the construction of a will between Mrs. Emma D. Gidden and others and Mrs. Alice R. Gidden, executrix of the estate of W. B. Gidden, deceased. From an adverse decree, Mrs. Emma D. Gidden and others appeal. Affirmed in part, reversed in part and remanded.

Affirmed in part; reversed in part, and remanded.

Maynard, FitzGerald & Venable, of Clarksdale, for appellant.

Brewer & Montgomery, of Clarksdale, for appellee. Briefs of counsel not found.

OPINION

Anderson, J.

There is involved in this litigation the construction of the last will and testament of W. B. Gidden, who usually signed his name as Bill Gidden, and certain deeds of gifts executed by him between the time of the making of the will and his death. The will was executed on the 26th day of January, 1934; he died on March 3d following. At the time of the execution of the will and the deeds, the testator was in the Baptist Hospital in Memphis being treated for a serious illness of which he died. He was without children or descendants of children. His mother, Mrs. Emma Gidden, survived him, as did his wife, Mrs. Alice Gidden, and two brothers, Hill and L. A. Gidden. The beneficiaries under his will were his wife, who was named executrix without bond; his mother; two brothers; Miss Spain, his secretary; a nephew, Pete Kittle; E. H. Graves, an employee; and Rodney Brooks, a friend.

The testator owned, at the time of the making of the will, the following property: A plantation in Tunica county, consisting of approximately seven hundred acres, known as the Gardner place, and the usual farming equipment thereon, against which there was a mortgage indebtedness in favor of the Union Central Life Insurance Company; his home place in Tunica, on which there was situated his residence, a garage business, a "Jack and Jill" restaurant, and a drug store; a "reserve account" in the bank, consisting of about one thousand six hundred dollars growing out of the garage business; a fifty-foot front lot in the town of Tunica; one hundred and thirty-six bales of cotton in a compress in Memphis, for which he held negotiable warehouse receipts in the safe in his office in the town of Tunica; about seven thousand dollars in the hands of brokers in Chicago, growing out of futures contracts; stock in the Planters Bank in Tunica; stock in the Delta Grocery & Cotton Company of Clarksdale; stock in Moon Lake Fishing Club; and other property, including bills receivable. His wife was a devisee as well as residuary and specific legatee in the will. She qualified as executrix and took charge of the estate.

Ranged in this litigation on one side is the widow in her capacity as executrix and also as beneficiary under the will, and on the other side all the other devisees and legatees. The residuary estate was not sufficient to pay the testator's debts; however, the legacies are more than sufficient for that purpose without encroaching on the real estate. The bequests, except those to his brothers, were all sufficiently ear-marked to make them specific legacies under the law. The principal question in the case is whether or not they should be abated pro rata for the purpose of paying the general debts, or whether the specific legacy to the mother of the cotton in compress and the garage reserve account in the bank and the futures account with the brokers in Chicago should be preferred. In other words, whether the other specific legacies should first be abated pro rata before reaching the specific legacy to the mother referred to. The chancellor held that all the specific legacies should be abated pro rata.

In the determination of that question there are several others involved, which will be considered as they appear logically. It would be well to keep in mind that under the law, on the death of the owner personal property descends to his personal representative for the payment of debts and legacies, and real estate goes to his heirs and devisees and is not subject to debts until the personal property is exhausted, unless the will expressly provides otherwise. Section 1643, Code 1930; Gordon v. James, 86 Miss. 719, 39 So. 18, 1 L. R. A. (N. S.), 461. Probably it would be better to set out the will in full rather than undertake to state its substance; leaving off the caption, signature of the testator, the signatures, and certificate of the subscribing witnesses, it reads as follows:

"I W. B. Gidden (Bill Gidden), knowing the uncertainty of life and the certainty of death, and being of sound and disposing mind, memory and understanding, do hereby make, publish and declare this, my Last Will and Testament, hereby revoking and annulling any and all former wills and codicils thereto by me heretofore made.

"Item 1. I direct that all of my just debts, expenses of last illness and funeral expenses be paid by my Executrix.

"Item 2. I hereby bequeath unto my beloved wife, Alice Gidden, my home, together with all my real estate forming a part of my resident situate in the Northwest (NW 1/4) the Town of Tunica, and also the Northeast (NE 1/4) Quarter of Block No. 2 in the Southwest (SW 1/4) Quarter of said Town of Tunica, upon which there is now situated my garage building and the 'Jack & Jill' restaurant, excepting, however, from this bequest, the drug store building which has recently been constructed on the Northwest corner of said Northeast Quarter of Block No. 2 and which is now occupied as a drug store; I also devise and bequeath unto my said wife the entire garage business now operated and conducted by me, together with any and all accounts receivable, bank accounts incident thereto (excepting, however the Reserve Account) and any and all assets thereof, which said bequests in this Item named are made in fee simple absolute.

"Item 3. I hereby devise and bequeath unto my beloved mother, Mrs. Emma D. Gidden, that certain lot described as fifty feet in the middle of the Northeast Quarter of Block No. 4 in the Southwest 1/4 of the said Town of Tunica, together with any and all improvements thereon located, for the term of her natural life and at her death to descend, to my brother Hill Gidden in fee simple.

"Item 4. I hereby devise and bequeath unto my brother, Hill Gidden, the drug store building located at the Northwest corner of the Northeast 1/4 of Block No. 2 in the Southwest 1/4 of the Town of Tunica, together with such part of said Northeast 1/4 as is occupied by said building; I also devise and bequeath unto the said Hill Gidden the sum of Four Thousand ($ 4,000.00) Dollars and direct that the same be paid to him as hereinafter directed.

"Item 5. I hereby devise and bequeath unto my good friend, Rodney Brooks, my clubhouse situated on Moon Lake and my motor boat located at such house, together with any and all rights and privileges which I may have in and to a...

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