Greely v. Houston

• Decision Date: 24 October 1927
• Docket Number: 26359
• Court: Mississippi Supreme Court
• Parties: GREELY et al. v. HOUSTON et al. [*]

114 So. 740

148 Miss. 799

GREELY et al. v. HOUSTON et al. ^[*]

No. 26359

Supreme Court of Mississippi

October 24, 1927

(Division A.)

1 WILLS. Devise or bequest is not effective until acceptance.

A devise or bequest does not become effective until accepted by devisee or legatee, who has right to accept or decline it as he may desire, and, in case of refusal to accept devise or legacy, the property will be dealt with as if devise or legacy had not been made.

2 WILLS. Refusal of devisee or legatee to accept devise or bequest, followed by limitation over on death, is equivalent to his death.

When a devise or bequest is followed by limitation over on death of devisee or legatee, refusal of devisee or legatee to accept it is equivalent to his death, and limitation over then becomes effective, unless it is manifest from provisions of will that testator intended otherwise.

3 WILLS. Renunciation of will granting life estate by cestuis que trustent terminated life estate, and limitations over became at once effective.

Where will creating life estate with limitation over was renounced by cestuis que trustent, the life estate of trustee was terminated, and limitations over on the termination of the trust became at once effective.

4 CHARITIES. Religious societies. Requests to religious and charitable societies held invalid as to land situated within state (Constitution 1890, sections 269, 270; Hemingway's Code 1927, sections 3578, 3579).

Under Constitution 1890, sections 269, 270, Code 1906, sections 5090, 5091 (Hemingway's Code 1927, sections 3578, 3579), bequests over to religious and charitable institutions on death of life tenants held invalid as to land situated within state.

5. CHARITIES. Religious societies. Direction in will to sell land and invest money in personal property held ineffective as to bequest over to religious and charitable institutions (Constitution 1890, section 269).

Under Constitution 1890, section 269, rendering void, not only a devise of land for religious and charitable institutions, but also any direction of will that land be sold and money received therefor be applied to such uses, a direction in will that land situated in state be sold and money invested in personal property is ineffective in so far as bequests to religious and charitable institutions are concerned.

6. CHARITIES. Devise to charitable institution for carrying on charitable work held invalid, though not accompanied by definite instructions (Constitution 1890, section 269).

Where will devising land or its proceeds to religious or charitable institution intended that money should be expended in carrying out charitable work, in that property was directed to be turned over to do some permanent good, devise was invalid under Constitution 1890, section 269, though not accompanied with definite instructions to appropriate it to charitable uses.

7. CHARITES. Devise of land to charitable institution held void (Constitution 1890, sections 269, 270).

Devise of land to charitable institution held void under Constitution 1890, section 269, notwithstanding section 270 relative to bequests of personal property to religious and charitable institutions, it being impossible to construe the two sections harmoniously.

8. CHARTIES. Bequests of personal property to nonreligious charitable institution are valid (Constitution 1890, section 270).

Under Constitution 1890, section 270, bequests of personal property to nonreligious charitable institutions are valid.

Division A

Suggestion of Error Overruled Dec. 5, 1927.

APPEAL from chancery court of Washington county.

HON. J. L. WILLIAMS, Chancellor.

Suit by George T. Houston and others against Andrew T. Greely and others. Decree overruling demurrers of various defendants, and defendants appeal. Affirmed and remanded, with leave to answer.

Item III of the will of Frank B. Houston is as follows:

"Third. All the rest, residue and remainder of my property of every kind, real, personal and mixed, wherever situated I give, devise and bequeath unto Andrew T. Greeley, Walter A. Graff, and W. Herbert Stewart as trustees, in trust nevertheless for the following uses and purposes: To take, receive, hold and maintain the same, invest and reinvest the same disposing of any part or parts thereof as may be found expedient or advisable for the purpose of providing for the payment of legacies herein and for reinvestment from time to time and to pay over the income therefrom at convenient period during each year in equal parts to my three sisters hereinbefore named, Emma Stanton, Mary Turner, Eva Hardesty, and my brother, J. Sherman Houston, one-quarter of said income to each of said sisters and brother during the natural life of each respectively.

"My property at present has been largely liquidated and consists principally of cash, stocks, bonds and securities in part and the remainder in timber, timber land and real estate located in the state of Mississippi. It is my desire that my executors and trustees herein named shall, as soon as it can be done advantageously, sell and dispose of all the said real estate turning the same into cash or income producing securities to the end that as soon as reasonably feasible my estate shall consist entirely, or nearly so, of income producing property.

"So that my executors or trustees shall pay over one quarter of the income from my estate at any and all times after my decease as hereinbefore provided to each of my three sisters and my brother, J. Sherman Houston, during the natural life of each respectively. At the death of each one of said three sisters and brother, J. Sherman Houston, respectively, the one-quarter of my trust estate as it shall then exist theretofore referable to such deceased sister or brother, shall be delivered to and become the property of the charitable organizations as hereinafter named, so that at the death of each of the said four beneficiaries respectively, the one-quarter interest herein provided for such beneficiary so dying shall go, be delivered to and become the property of the following charities in succession as their absolute property; that is, at the death of the first one of said beneficiaries one-quarter of said trust estate, principal and then accrued and unpaid income belonging thereto shall go to the Chicago Branch of the Salvation Army. At the next death of one of said beneficiaries, one-quarter of said trust estate shall go to and be taken by the three churches Presbyterian, Baptist, and Methodist Churches of Centreville, Iowa, one-third thereof to each. At the death of the third of said beneficiaries in point of time, one-quarter of said trust estate, principal and then accrued and unpaid income shall go to and be taken by the Home for Destitute Crippled Children, now located on Park avenue in Chicago, Illinois; and at the death of the fourth and last of said beneficiaries in point of time the remainder one quarter of said estate shall go to and be taken by the Old People's Home of the City of Chicago, now located on Vincennes avenue near 47th street; and the trust hereby created for the benefit of my said four beneficiaries shall terminate as to each one quarter upon the death of each one of said beneficiaries and the property incident thereto be turned over to the charity succeeding hereunder absolutely in its own right, and upon the death of the last one of said four beneficiaries and the turning over of the last one-quarter of said trust property to the succeeding charity as beneficiary, the entire trust shall terminate."

Affirmed and remanded.

Percy & Percy, Shands, Elmore & Causey, Clark M. Cavenee, Walter Bachrach, William G. Lodwick, Burry, Johnstone & Peters, Judah, Willard, Wolf & Reichmann and W. B. Hays, for appellants.

Sivley, Evans & McCadden, for appellees.

Reporter's Note: Exhaustive briefs were filed in this cause by learned counsel on both sides but are too voluminous to report.

Argued orally by Clark M. Cavenee, A. W. Shands, Walter Bachrach, William Burry, Jr., and Leroy Percy, for appellant, and C. L. Sivley and M. G. Evans, for appellee.

OPINION

SMITH, C. J.

This is an appeal from a decree overruling separate demurrers of the various appellants to a bill of complaint in which they are defendants, and is for the purpose of settling the principles of the case.

The case set forth in the bill is substantially as follows: Frank B. Houston died in Cook county, Ill., while a citizen thereof, seized and possessed of a large amount of property, a part of which is situated in this state. He left a will by which, after making certain specific bequests and devises, he disposed of the residue of his property as set forth in item 3 thereof, which the reporter will set out in full. After providing for the appointment of the appellants, Greely, Graff, and Stewart, as his executors and trustees therein, the will continues as follows:

"I name these trustees in the confidence that they will be able to see that the property I leave is invested to provide a fair income for my sisters and brother, J. S. Houston, during their lives, and that the principal may be turned over intact to the ultimate beneficiaries to do some ultimate good."

The property in this state consists of land, a part of which is in cultivation, and certain personal property thereon. Houston sold a part of this land prior to his death to the Bellgrade Lumber Company, a Tennessee corporation, by a written contract signed both by himself and the Bellgrade Lumber Company, by which it was agreed that deeds to the land from Houston to the lumber company, each deed conveying a separate parcel, should be and they were deposited with the Commercial Trust & Savings Bank of Chicago, Ill., to be delivered by the bank...