Hailey v. McLaurin's Estate

• Decision Date: 29 January 1917
• Docket Number: 19347
• Citation: 112 Miss. 705,73 So. 727
• Parties: HAILEY v. MCLAURIN'S ESTATE
• Court: Mississippi Supreme Court

73 So. 727

112 Miss. 705

HAILEY v. MCLAURIN'S ESTATE

No. 19347

Supreme Court of Mississippi

January 29, 1917

Division A

Appeal from the Chancery court of Hinds county, HON. G. G. LYELL Special Chancellor.

Suit between Mrs. Mary E. Hailey and the estate of J. W. McLaurin deceased. From a judgment, Mrs. Hailey appeals.

The facts are fully stated in the opinion of the court.

Decree affirmed.

W. E Morse, for appellant.

The will is clear and explicit and shows great care and diligence in the preparation thereof, and the testator set out in terms which can have but one construction, that he intended creating a special bequest and that it was his desire to evade the statute of Mortmain.

In the case of Maloney v. Mooring, 40 Miss. 247, our court said, "when a particular fund is referred to only as pointing out a convenient mode of payment, the legacy is considered as demonstrative; but if the gift be of the fund itself, in whole or in part, or is so charged upon it as to show the intention to burden that object alone with the payment, it is esteemed specific. 2 Williams, Exrs., 1043 note 1; Chatsworth v. Beech, 4 Jeasy Jr. P. 555 note a; Smith v. Fitzgerald, 3 Ves. and B. 5; Ludlam Estate 13 Penn. St. R. 188; Balliet's Appeal, 14 Jd. 461; Walls v. Steward, 16 Id. 275."

The following definitions of specific bequests show that the bequest in question falls under this head. Palmer v. Palmer's Estate, 75 A. 130, 106 Me. 26: "A specific bequest is a bequest of a specific thing or fund that can be separated out of all the rest of the testator's estate of the same kind so as to individualize it, and enable it to be delivered to the legatee as a particular thing or fund bequeathed."

The court said in the case of Gardner et al. v. Vial et al., 90 A. 760 (R. I. Case): "A specific legacy is the bequest of a definite specific thing, capable of being designated and identified. A general legacy is one which does not necessitate the delivery of any particular thing or the payment out of any particular portion of the estate.

The Iowa court in 1914 said in the case of Carpenter's Estate v. Wiley, 147 N.W. 175: "If it is the intention to have it paid without reference to the fund upon which it is primarily a charge, it is general, but if it is specific, this definition has oftentimes been repeated and should be accepted as correct." See Smith v. McKittereck, 51 Iowa 551, 2 N.W. 257, 8 N.E. 251.

"The bequest of a particular thing or money, specified and distinguished from all others of the same kind is a regular specified legacy. Broadwell v. Broadwell, 61 Ky. 290.

"A legacy is specific when it is the intention of the testator that the legatee shall have the very thing bequeathed, and not merely a corresponding amount in value." Wallace v. Wallace, 23 N.H. 149.

"When a legacy by its terms, indicate a particular part of the testator's estate, it is specific, otherwise general." Tifft v. Porter, 8 N.Y. 515.

"A specific legacy is a gift or bequest of some definite, specified thing, capable of being designated and identified. In re Martin, 54 A. 589, 25 R. I. Case.

"A specified legacy is the bequest of a particular thing or money specified and distinguished from all others of the same kind, which should at once vest with the assets of the executor; it is a part of the testator's property itself, it is sacred and distinguished from the whole of his property, and is liable to ademption." Norris v. Garland Admr., 78 Va. 215.

In Evans v. Hunter, 86 Iowa 413, 17 L. R. A. 308, 41 Am. St. Rep. 503, 53 N.W. 277, the court said: "A specific bequest is one which necessitates delivering a particular thing, or the payment of money out of a particular portion of the estate."

Numerous examples of what constitutes a specific bequest could be cited to the court, but a specific bequest is determined from the wording of the particular will and the intention of the testator controls, this is to be gathered from the interpretation of the entire will. The testator in this case could not have more clearly expressed himself, than when he directed from what portion of his estate the fund of twenty-five thousand dollars was to be created from. "And the said trustees or its successors in trust shall, out of the proceeds of my personal property, and out of the proceeds of the sale of my realty, not situated in the state of Mississippi, create a fund of twenty-five thousand dollars. The testator had already sold the land in question, but had not yet realized upon it; it was a part of his estate and could not have been better identified than it was in this instance. The appellee may claim that it is a broad division, but there is no room to doubt that the testator meant what he said, and there can be no two constructions placed upon his meaning. It was his intention to create this fund absolutely and he provided minutely how the money was to be invested and reinvested. He was specific in his direction of the creation and maintenance of a trust fund, he was equally specific in directing how this fund was to be created from what portion of his estate it was to be taken, showing that this was a Specific bequest, and this fund was to be taken from a specific portion of his estate. There can be no doubt that the testator did not want money from the sale of his land located in the state of Mississippi to be included in this amount; we can infer that it was the intention of the testator to evade the Statute of Mortmain; had this been his intention he could not have been more specific as to where the money was to be created from.

But there was a failure of this specific bequest; when the executor's report was made it was explained to the court that there was not enough assets to pay the specific bequest, and permission was asked to loan the fund so as to increase the same until it would equal the amount of twenty-five thousand dollars.

The court held in the case of Morris v. Garland, Admr., 78 Va. 215, "A 'Specific Legacy' is a gift of a particular specific thing, or the proceeds of the sale of a specific thing, or a specific fund, or a definite portion thereof, and it is satisfied by the delivery of the specific property identified as the subject-matter of the gift, and where the same is not owned by the testator at the time of his death, the legatee takes nothing, for he has no claim on the general assets."

The executor and the court placed this construction upon this will, they did not attempt to have the lands situated in the state of Mississippi sold to satisfy this legacy, but recited in one of their petitions that it would be unlawful to use the proceeds from the sale of the realty in the state of Mississippi. The executor attempted to carry out the will of the testator and asked leave of the court to lend money to create this bequest. Now it is a principle that the courts lean against the construction of a bequest as being specific, but at the same time they lean against the construction or interpretation of a will in favor of a charity as opposed to the natural heirs of the testator, one of these leanings should lean against the other and contract its influence. The court, when the request was made for permission to loan this money, granted the request, thus showing that the court below did not consider the same as either a general or a demonstrative bequest.

40 Cyc. on the subject of Willis, page 1869, says, "A specific legacy is the bequest of some definite, specific thing capable of being designated and identified; one which separates and distinguishes the property bequeathed from the property of the testator so that it can be identified, and delivered to the legatee as a particular thing or fund bequeathed. Such a legacy can be satisfied only by a delivery to the legatee of the particular thing bequeathed to him, and if the thing is not in existence when the bequest would otherwise become operative, the legacy has no effect."

Thompson in an exhaustive book of Wills published in 1916 on page 122, had this to say in regard to specific bequests: "A specific legacy is the gift of something which a testator, identifying it by a sufficient description, and manifesting an intention that it should be enjoyed or taken in the state or condition indicated by that description, separates in favor of a particular legatee from the general mass of his personal estate. Bairner v. Cowdry, 16 Conn. 1; Bradford v. Haynes, 20 Me. 105; Towle v. Swansey, 106 Mass. 100; Crawford v. McCarty, 159 N.Y. 514.

I take it that it is a rule of law that is too obvious to require the citation of authorities that a specific bequest vests in the beneficiary immediately upon the death of the testator and it is equally as obvious that if the thing bequeathed is not in being at the death of the testator, the beneficiary takes nothing.

The special bequest which the testator in this case made to the state charity hospital, failed when the proceeds from the personal property and the proceeds from the sale of the real property, not located in the state of Mississippi failed to measure up to the amount bequeathed. The court should have declared that the bequest had failed and that the moneys that were in the possession of the trustee should have been turned over to the residue beneficiaries under the will.

Whitfield & Whitfield, for appellees.

The tendency of the courts is very strong against ever construing a legacy to be specific if it can be reasonably made out to be general or demonstrative. In Jarman on Wills, volume, 2, bottom of page 1067, the author says: "But in construing wills the court leans very strongly against specific legacies, so that in case of doubt the more probable view is that the legacy is not specified."

Mr Jarman, in Volume 2, page 1065, points...