Hale v. Neilson

• Decision Date: 27 November 1916
• Docket Number: 18321
• Citation: 112 Miss. 291,72 So. 1011
• Court: Mississippi Supreme Court
• Parties: HALE ET AL. v. NEILSON ET AL

72 So. 1011

112 Miss. 291

HALE ET AL. v. NEILSON ET AL

No. 18321

Supreme Court of Mississippi

November 27, 1916

APPEAL from the chancery court of Tallahatchie county, HON. JOE MAY Chancellor.

Bill by Mrs. Pearl Marks, Mrs. Mary Neilson and others, against C. H Hale and others. From a decree overruling a demurrer to the bill, defendants appeal.

This cause originated in the chancery court of Tallahatchie county by bill exhibited by Mrs. Pearl Marks et al., appellees herein, against the appellants, seeking to remove an alleged cloud upon certain real estate which appellees claim to have inherited from the widow of one C. A. Neilson, deceased. A demurrer was interposed to the bill and by the court overruled. From the decree overruling the demurrer appellants, as defendants in the court below, prosecute this appeal.

Inasmuch as this case presents for construction the last will and testament of C. A. Neilson, we here set out in full the will with codicil, which is in the following language:

"I, Charles A. Neilson, a citizen of the county of Tallahatchie, state of Mississippi, being of sound disposing mind and memory and more than twenty-one years of age, do hereby make, ordain, publish and declare this my last will and testament hereby revoking all others heretofore made by me.

"Item 1. It is my desire that all my just debts and funeral expenses be paid as soon after my death as practicable.

"Item 2. I devise and bequeath all of my estate, both real and personal to my beloved wife, to have, to hold and enjoy the same as long as she continues my widow.

"Item 3. It is my will and I so direct that in the event of the marriage of my widow, that she retain to her own separate use, benefit and behoof, one-half of my said estate, both real and personal, during her natural life, and upon her death, should she leave surviving her any child, or children or descendants of them, I devise and bequeath to such child or children or descendants of them the said half so to be retained by my wife during her natural life, but should she die not leaving any child or children or descendants of them I bequeath and devise said last mentioned half to the persons hereinafter mentioned in the 4th item of this will, to be divided among them in the proportion therein provided for the division of said half to be given up by my wife upon marriage as aforesaid.

"Item 4. In the event of the marriage of my widow, I devise and bequeath one-half of my estate, both real and personal, to the following persons, in the following proportions, to wit, one-fifth of said half each to my sisters, Annie F. Symons and Catherine C. Hopkins, my niece, Annie Little, my nephew, Walker Neilson; and one-tenth of said half each to my nephews, William Covington and Benjamin Covington, to have and to hold unto themselves and their respective heirs in fee simple.

"Item 5. It is the full meaning and intent of this my last will and testament that my beloved wife shall hold and enjoy all of my estate during her widowhood, in case she marries, that one-half of my estate be divided and disposed of among my said sisters, niece, and nephews as specified and directed in item 4 of this will; that my wife retain during her natural life the other half of my estate, and that in case my wife die leaving a child or children or their descendants surviving her the last mentioned half of my estate shall be divided between my said sisters, niece, and nephews in the same manner and proportions as directed in said item 4 of this will for the division of said half so to be given up by my wife in case of her marriage.

"Item 6. I hereby nominate, constitute and appoint my beloved wife, Julia A. Neilson, the executrix of this my last will and testament and I hereby expressly direct that she be not required to execute any bond as such executrix and that she be not required to execute any bond for the preservation of said estate or any part of it.

"Signed, sealed, published, and declared this the 31st day of March, 1879.

"[Signed]

C. A. NEILSON.

[Seal.]

"The above and foregoing last will and testament of Charles A. Neilson was this day signed, sealed, published, and declared by the said Charles A. Neilson to be his last will and testament in our presence and each of us signed the same as witnesses at the request of said Charles A. Neilson in his presence and in the presence of each other.

"This the 31st day of March, A. D. 1879.

"JAMES MCCLAIN.

"U. B. MITCHELL.

"W. C. MITCHELL.

"This codocil made in addition to and in modification of my last will and testament dated 31st day of March, 1879.

"Item First. I will and bequeath to John W. Johnson, a minor, living with me my black mare named Mollie, and her two colts, named Sallie and Dewdrop, and their future offspring, also my cow named Mattie and calf and their future offspring, also Crowder cows, half Holstein heifer and her future offspring.

"Item Second. It is further my will and I so direct that said John W. Johnson take of my estate equally with my brothers and sisters, that is to say, he and they are to have my estate, share and share alike as provided in my said last will for my brothers and sisters, except that the said John W. Johnson is not to share in any of my stock except as provided in the first item of this codicil.

"Item Third. It is further my will and I so direct that if said John W. Johnson die before he arrive at the age of twenty-one years, the provisions made for him above in this codicil shall be divided equally between my half-brothers and sisters, to-wit: James C. Neilson, Sallie D. Neilson, John A. Neilson, Sophia A. Neilson (now Mrs. Sophia A. Lewis) they to share and share alike.

"I also give to my wife, Julia A. Neilson, in addition to the provision made in my will Mag's heifer, Callie and Laura and their future offsprings and one mare Zana and her future offsprings.

[Signed]

C. A. NEILSON.

"Witness:

GEORGE G. HARVEY.

"WILLIAM R. HENSON.

"W. D. WATSON."

Mr. Neilson died in 1907, leaving his widow, Mrs. Julia A. Neilson, as a devisee and one of the chief beneficiaries of his estate, and, had there been no will, his said widow would be his sole heir at law. Mrs. Julia Nielson died intestate in the year 1913, leaving appellees as her sole heirs at law. The complainants in this case, then, are the blood relatives of the widow and exhibit this bill against the other devisees named in the will of Mr. Neilson, challenging their right, title, and interest in any of the lands devised. There are two contentions or views pressed by counsel for complainants: First, that the testator devised his widow the fee in these lands subject to be divested, however, upon her remarriage; second, that if the testator did not devise a conditional fee to his wife, he did bestow a life estate conditioned to be divested upon remarriage, to the extent and in the way expressly provided in the will; and that as to the remainder he died intestate, leaving his widow as sole heir, and, since she did not remarry, both the life estate and remainder were merged in her. The widow in fact did not remarry. There is another, and what might be termed a third, contention that, conceding that the testator made an attempt to dispose of the remainder, the language employed by him was and is ineffectual as disposing of the fee, and accordingly this fee is cast by our laws of descent upon the widow.

It is the contention of appellants that the widow took at best a life estate subject to be limited as to one-half by remarriage; that the widow took an estate durant viduitate; that the will as a whole gives evidence of a clear intention to regard the brothers and sisters of the testator and John W. Johnson, the minor living with him, as objects of his bounty and devisees as to the remainder in fee; that, the life estate of the widow having now determined, the devisees, blood relatives of the testator and not the blood relatives of the widow, are now the absolute owners of the subject of this litigation; and that, even if they are not named as devisees expressly upon the death of the widow, they are certainly devisees by necessary implication.

Decree reversed.

Frierson & Hale, Dinkins & Caldwell, for appellant.

Julian C. Wilson, Wm. Baldwin and Woods & Kuykendall, for appellee.

OPINION

STEVENS, J.

The complainants in the court below, bearing the burden of their bill, must necessarily prevail upon the strength of their own title, and not upon the weakness of the title of their adversary. To maintain this suit they must be regarded as having inherited the lands in question from Mrs. Julia A Neilson, the widow of the testator, whose will is here brought under review. Did then Mrs. Julia A. Neilson own an estate of inheritance. We think not. Before entering the mystic maze of authorities on wills similar to the one in question, we read this will from first to last in an endeavor to find and to appreciate the intent and purpose of the testator, to gather from the whole will what he meant to say and do. Looking to the whole instrument, including the codicil, and giving due regard to every expression, we are convinced beyond doubt that Mr. Neilson intended to give his wife the full use and enjoyment of his estate so long as she remained his widow, and that is to say, so long as she remained unmarried, and, at most, for her natural life. So long as she bore the name of Neilson she was to enjoy the estate of Neilson, but at all times her estate was a qualified and limited estate. If she should remarry, then it is clear from the express...