Guion v. Guion, 40644

• Decision Date: 03 February 1958
• Docket Number: No. 40644,40644
• Citation: 100 So.2d 351,232 Miss. 647
• Parties: T. Campbell GUION v. Victoria Augusta GUION.
• Court: Mississippi Supreme Court

Page 351

100 So.2d 351

232 Miss. 647

T. Campbell GUION v. Victoria Augusta GUION.

No. 40644.

Supreme Court of Mississippi.

Feb. 3, 1958.

Bridgforth & Love, Yazoo City, for appellant.

Albert S. Gardner, Yazoo City, for appellee.

ROBERDS, Presiding Justice.

By this litigation we are called upon to determine the inheritable rights of a daughter in the estate of her mother who has executed a will purporting to devise and bequeath all of her property to her husband, the daughter having been born after the execution of the will by the mother. The question arises under these conditions:

On January 24, 1938, Mrs. Minnie Grace Guion executed her last will and testament. The will purported to devise and bequeath to T. Campbell Guion, husband of the testatrix, all property of every kind the testatrix might own at the time of her demise. At the time she executed this will her heirs at law, had she died intestate, would have been T. Campbell Guion, her husband, and T. C. Guion, Jr., and Grace Guion, children of testatrix.

On April 23, 1942, another child, Victoria Augusta Guion, was born to Mr. and Mrs. T. Campbell Guion.

On May 22, 1956, Mrs. Minnie Grace Guion departed this life, leaving the foregoing last will and testament. Had she died intestate her heirs would have been her said husband and three children. At that time Victoria was fourteen years of age. The other two children, and, of course, the husband were adults.

Specifically, it is contended that, although Victoria is not a beneficiary under the will, she is, by virtue of being born after the execution of the will, an heir at law of her mother, under Section 659, Code of 1942, just as though her mother had not left a will. In other words, it is contended on behalf of Victoria that she was not 'disinherited' but was only pretermitted by said will, and that, therefore, as a result of said Section 659 she is entitled to one-fourth of the estate left by her mother, subject to homestead and marital rights of her father.

On the other hand, appellant says that the will was effective to disinherit Victoria and that, therefore, she is vested with no interest in the estate of her mother. The chancellor sustained the contention of Victoria. The father appeals here. Neither T. C. Guion, Jr., nor Grace Guion prosecuted an appeal.

In interpreting the will, as affected by said Section 659, and in an effort to determine the intent of the testatrix, we should take into consideration all of the terms and provisions of the will and the circumstances surrounding the testatrix when she executed the will. Slaughter v. Gaines, 220 Miss. 755, 71 So.2d 760, 49 A.L.R.2d 1355.

Omitting the attestation clause, the will reads:

'I, Mrs. Minnie Grace Guion, of Yazoo County, Mississippi, being of sound and disposing mind and memory and over the age of twenty-one years, do hearby make, ordain, declare and publish this My Last Will and Testament, hereby revoking all other wills by me heretofore made.

'Item 1. I hereby devise and bequeath all the property I possess, wherever situate, real, mixed and personal, to my husband, T. Campbell Guion.

'Item 2. I hereby appoint my said husband, T. Campbell Guion, executor of my estate without bond, entirely waiving the requirement of bond from him as such. I also waive any inventory and appraisement of my estate and any accounting, annual or final, to any court from him as such executor, with the intent that when he shall have probated this my Last Will and Testament and shall have given notice to creditors in the manner and form required by statute and paid such legal debts as may be probated against my estate, my estate shall then stand entirely administered without the necessity of any further legal proceedings whatever.

'Signed, sealed, published and declared as this my Last Will and Testament, this the 24th day of January, 1938.

'/s/ Mrs. Minnie Grace Guion.'

Section 659, Miss. Code 1942, is as follows: 'If a testator or testatrix, having a child or children born at the time of making and publishing his or her last will and testament, shall, at his or her death, leave a child or children born after the making and publishing such last will and testament, the child or children so after-born, if unprovided for by settlement, and neither provided for nor disinherited, but only pretermitted by the last will and testament, shall succeed to the same portion of the father's or mother's estate as such child or children would have been entitled to if the father or mother had died intestate, towards raising which portion the devisees and legatees shall contribute proportionately out of the parts devised and bequeathed to them by the same will and testament in the same manner as is provided in the case of posthumous children.'

The bill of complaint was filed herein by T. Campbell Guion, beneficiary in the will. Respondents are T. C. Guion, Jr., and Mrs. Grace Guion Lee (Grace Guion being then married) and Victoria Augusta Guion, fifteen years of age, appearing through her guardian, T. C. Guion, Jr. The first two answered, admitting the essential facts alleged in the bill, and that T. Campbell Guion was the owner under the will of all of the estate of which Mrs. Minnie Grace Guion died seized and possessed. Victoria filed a general demurrer to the bill on the one ground that 'There is no equity on the face of the said bill'. This demurrer, of course, admitted as true the essential and relevant facts properly set out in the bill. So that, in passing upon the question here involved, we must accept such facts as being established.

The bill alleged that Mrs. Minnie Grace Guion, wife of complainant, departed this life May 22, 1956, leaving the above quoted instrument as her last will and testament; that the will was duly probated through the chancery court of Yazoo County, Mississippi, that T. Campbell Guion was duly appointed and qualified as the executor in said will; that he had given due notice to creditors and had fully administered the estate, and was then ready to file his final account and distribute the property, but that because of the uncertainty as to title to the estate it was necessary for him to procure an adjudication of that question by a competent court of equity. The bill set out that the heirs at law of Mrs. Minnie Grace Guion were the husband and the three children, giving the age of Victoria as fifteen years. The bill averred it was the intention of Mrs. Guion to disinherit her children and vest entire title to her property in complainant when she executed the will and which intent continued to the date of her death, and that she thought she had done that. The bill then stated: '* * * complainant further shows that at the time of his marriage to the deceased she was the owner of a large body of hill land in Yazoo County, Mississippi which was not remunerative and owned no personal property to operate said lands, that the deceased and the complainant together began the operation of said lands, the complainant providing the work and management of said lands; that during her lifetime and subsequent to their marriage through the complainant's efforts said lands were largely improved, sufficient equipment was acquired to effectively operate said lands and a large herd of cattle were purchased from the successful operation by him of said lands and an additional body of land, containing several hundred acres, were purchased from the proceeds of said operation, title to which was taken in the name of the deceased; that the deceased realized the value of her property had been greatly increased and in fact the ownership thereof maintained by the efforts of the complainant and she further realized that to effectively operate said lands subsequent to her death the title thereof should be vested in the complainant and she was satisified complainant would do the right and proper thing by her children and would care for and maintain them in a much better manner than if her property had gone to the complainant and the defendants in equal shares as by inheritance.'

The specific contention of appellee, as we understand it, is that the conveying words of the will 'I hereby devise and bequeath all the property I possess, whereever situated, real, mixed and personal, to my husband T. Campbell Guion' are not enough to disinherit Victoria under the will. She says the will to disinherit her, should have contained an express, specific clause, affirmatively directed to Victoria, following the devising clause to T. Campbell Guion, such as 'hereby disinheriting all children who may be born to me', or 'by such provision I am disinheriting all my children now living and those who may be born to me hereafter'. It will be noted that Section 659 does not deal with the manner or method of disinheriting. It simply says the after-born child may inherit if not 'disinherited' by the will. Appellant says the devising clause in the will, as written, did disinherit Victoria, as well as the other two children. It does not appear this Court has passed upon this specific question.

There are four cases in Mississippi which have a slight bearing upon the question under consideration.

In Watkins v. Watkins, 88 Miss. 148, 40 So. 1001, testator had a child by his first wife. That wife died. He re-married and had a child by the second marriage. Testator made a will providing for his two children and his living wife. After that another child was born to the second marriage. No mention was made in the will of the third child. Testator died. Court held the third child inherited one-fourth of the estate. There was no attempt at disinheritance in this case, and in the Watkins case, unlike the case at bar, provision was made for the other two children.

In Clark v. Clark, 126 Miss. 455, 89 So. 4, testator was married and had two children. His will provided for the wife and both children. Afterwards two other children were born. No provision in the will for either of ...