Gilmer v. Gilmer

• Decision Date: 28 May 1928
• Docket Number: 27121
• Citation: 117 So. 371,151 Miss. 23
• Court: Mississippi Supreme Court
• Parties: GILMER et al. v. GILMER. [*]

117 So. 371

151 Miss. 23

GILMER et al. v. GILMER. ^[*]

No. 27121

Supreme Court of Mississippi

May 28, 1928

Division A

1. EXECUTORS AND ADMINISTRATORS. If appraisers make no allowance for widow's support for year, court or chancellor in vacation may, on proper petition therefor, make allowance (Heminway's Code 1927, section 1792.

Acts of appraisers are subject to approval or disapproval of chancery court; and, if no allowance for support of widow, or widow and children, for year following decedent's death, has been made by appraisers, as provided by Code 1906, section 2052 (Hemingway's Code 1927, section 1792), the court or chancellor in vacation may, upon proper petition, make allowance.

2. EXECUTORS AND ADMINISTRATORS. Notice to executor or legatees of proceedings by widow for year's allowance for support is not required (Hemingway's Code 1927, section 1792).

Proceedings for obtaining year's allowance for support of widow or widow and children, under Code 1906, section 2052 (Hemingway's Code 1927, section 1792), are informal, and no notice to executor or administrator, or legatees or devisees under will is required.

3. WILLS. Will held not to show intention on part of testator that provisions therein for widow were to be in lieu of statutory allowance for support for year (Hemingway's Code 1927, section 1792).

Will directing that all real estate and personal property owned by testator except stock in grocery company should be delivered to wife immediately without limitations or conditions, and also devising certain number of shares of stock in grocery company to wife, held not to show an intention on part of testator that provisions therein for widow were to be in lieu of statutory allowance, under Code 1906, section 2052 (Hemingway's Code 1927, section 1792), for support for year.

4. EXECUTORS AND ADMINISTRATORS. Amount of statutory allowance for support of widow is within discretion of chancellor (Hemingway's Code 1927, section 1792).

Amount of allowance for support of widow for one year after decedent's death, under Code 1906, section 2052 (Hemingway's Code 1927, section 1792), is within discretion of chancellor.

5. EXECUTORS AND ADMINISTRATORS. Allowance of two thousand four hundred dollars for support of widow during year following decedent's death held not excessive (Hemingway's Code 1927, section 1792).

Allowance of two thousand four hundred dollars for support of widow for one year following decedent's death, under Code 1906 section 2052 (Hemingway's Code 1927, section 1792), held not excessive.

6. EXECUTORS AND ADMINISTRATORS. In proceeding to set aside decree granting widow allowance for year's support evidence regarding her separate income and income from property bequeathed held properly excluded (Hemingway's Code 1927, section 1792).

In proceeding to set aside decree granting widow allowance for year's support, under Code 1906, section 2052 (Hemingway's Code 1927, section 1792), evidence that at time of decedent's death wife possessed in her own name income-bearing property which, together with income from property bequeathed to her from will, was more than sufficient for her comfortable support in that state of life to which she had been accustomed during lifetime of her husband, held properly excluded.

HON. J L. WILLIAMS, Chancellor.

APPEAL from chancery court of Sunflower county, HON. J. L. WILLIAMS, Chancellor.

Petition by Vivian Louise Gilmer and another, by next friend, J. W. Gilmer, Jr., against Alice R. Gilmer, to set aside and vacate a decree granting defendant allowance for support as widow of M. D. Gilmer, deceased. From a decree denying the petition, complainants appeal. Affirmed.

See, also, 117 So. 830.

Decree affirmed.

Forrest G. Cooper, for appellants.

Sec. 1717, Hem. Code of 1917, sec. 2052 of Code 1906, is the statute controlling the award of an allowance to the family of the deceased for one year's support. We do not contend that the making of a will deprives a widow to the right of an allowance. But we do contend that the purpose of this statute is to insure the family of the decedent of a year's support after his death in comfortable circumstances regardless of the claims of creditors, or any others interested in his estate. It is not, as we understand, a prize by means of which the widow can take this allowance in addition to a comfortable support, in addition to her needs. We think the intention of the testator, together with the needs of the widow, which the testator understands, should control. Turner v. Turner, 30 Miss. 428; Whitehead v. Kirk, 106 Miss. 706, 64 So. 658.

If it be the law in Mississippi that the widow is to be awarded a year's support regardless of the extent of other provisions made for her and regardless of her needs and regardless of the intention of the testator, then our position is all wrong. If the widow's right to a year's allowance is absolute and dependent upon no other facts and is to be awarded regardless of any other facts, then we are wrong. Of course the widow's allowance is not dependent upon the solvency of the estate for its purpose is to provide for the widow according to her needs, regardless of the claims of creditors. Of course the widow's allowance is not dependent upon the testacy or intestacy of the estate for it is dependent wholly upon her needs for support. If the widow is bequeathed ninety-nine per cent of the property specifically and is still entitled to the other one per cent for a year's support regardless of her needs, then the intention of the testator is nullified. That extreme case is just as applicable here for the deceased specifically stated that five hundred shares of stock should go to one legatee and that all stock over three hundred shares should go in trust for debts and other legatees.

Chapman, Moody & Johnson, for appellee.

Sec. 1792, Hem. Code 1927, provides that it shall be the duty of the appraisers to set apart out of the effects of the decedent, for his widow, who was being supported by him, sufficient money for her comfortable support for one year. The acts of the appraisers are subject to the approval or disapproval of the chancery court, and the court, or the chancellor in vacation, may, in the first instance, make the allowance on the petition of the widow, as was done in Stewart v. Stewart, 132 Miss. 515, 96 So. 694. The proceedings for obtaining the allowance are wholly informal and notice to the executor or administrator or a devisee or a legatee under a will is unnecessary. When the appraisers set apart to the widow an amount of money for her support under the statute mentioned, their report is either confirmed or disapproved by the chancery court of the chancellor, without notice; and so it is when the chancellor makes the allowance in the first instance. The allowance is a privileged claim and is a right to which the widow is entitled to be paid out of the funds or property in the hands of the administrator or executor at all events, and whatever may be the condition of the estate, whether solvent or insolvent, testate or intestate. An opposition to the allowance by the executor or administrator is not contemplated by the statutes, and should not be tolerated, and notice to anyone before the allowance is made unnecessary. Morgan v. Morgan, Admr., 36 Miss. 348; McNulty, Admr., v. Lewis, 8 S. & M. 520; McReary, Executor, v. Robinson, 12 S. & M. 318.

The petition of the widow alleged that she was being supported by the deceased in his lifetime and was dependent on him for support, and the chancellor so found, and he further found that a reasonable amount for her comfortable support for one year was the sum of two thousand four hundred dollars, which he allowed for that purpose. The amount to be allowed for the support of the widow is a matter left to the sound discretion of the chancellor. Whitehead v. Kirk, 106 Miss. 706, 64 So. 658.

In Turner v. Turner, 30 Miss. 428, the widow was devised a large estate, and it was held that she was entitled to an allowance for one year whether the testator bequeathed property to her in his will or not, and that this is a right to which the widow is entitled, whatever may be the condition of the estate. McReary v. Robinson, supra. In Whitehead et al. v. Kirk, 106 Miss. 706, 64 So. 658, the appellants contended that the widow was not entitled to an allowance for her year's support because the deceased died testate as to his entire estate, and consequently, as contended here, it was not the intention of the testator that she should have a year's support. The court, following Turner v. Turner, supra, and McReary v. Robinson, supra, held that the widow was entitled to the year's support, although the testator died testate as to his entire estate.

The executor is not a party to this suit, and from what source he shall pay the two thousand four hundred dollar allowance is not involved on this appeal, nor is the construction of the will involved to determine which is the residuary clause; its construction may be before the court in the case now pending here, No. 27138, between the executor and the widow. See 24 C. J. 231.

Argued orally by Forrest G. Cooper, for appellant, and Elbert Johnson, for appellee.

OPINION

COOK, J.

On October 29, 1926, M. D. Gilmer died, leaving a last will and testament by which he disposed of all of his property under the following provisions thereof:

"1st I will and direct that all real estate and personal property owned by me except my stock in Gilmer Grocery Company be...