Henry v. Henderson

• Decision Date: 18 November 1912
• Docket Number: 14,729
• Citation: 103 Miss. 48,60 So. 33
• Court: Mississippi Supreme Court
• Parties: W. R. HENRY ET AL v. T. R. HENDERSON, EXECUTOR

60 So. 33

103 Miss. 48

W. R. HENRY ET AL v. T. R. HENDERSON, EXECUTOR

No. 14,729

Supreme Court of Mississippi

November 18, 1912

On suggestion of error. Former decision reversed and decree of trial court affirmed.

For former opinion, see 58 So. 354.

The following are the will and codicils referred to in the opinion:

" Last Will and Testament of Mrs. L. H. Henry.

I Lavinia Helen Henry, of Greenwood, Mississippi, being in good bodily health, and of sound mind and disposing mind and memory, calling to mind the frailty and uncertainty of human life, and being desirous of settling my worldly affairs and directing how the property with which God has pleased to bless me, shall be disposed of after my decease while I have strength and capacity so to do, do make and publish and declare this my last will and testament, hereby revoking all other last wills and testaments by me heretofore made.

First I commend my immortal being to Him who gave it, and my body to the earth to be buried with no ostentation, by my executor hereinafter named.

As to all my property real, personal and mixed of which I shall die possessed or to which I shall be entitled at the time of my decease, I devise, bequeath, and dispose of as follows:

My will is, that all my just debts and funeral charges shall by my executor hereinafter named be paid out of my estate as soon after my decease as convenient.

The three acres more or less immediately behind the home of A. M Craig, in the town of Greenwood, and which land is now enclosed by the said Craig, I give and bequeath to Mrs Chappie Craig.

All the remainder of the property now owned by me in the town of Greenwood, that is real estate, it is my will shall be sold by my executor either at public or private sale, as he may think best, after he and S. L. Brister of Greenwood, shall decide that it is advisable to sell the same; said sale to be made on such terms and in such manner as they may think best. It being my intention for said property to be sold whenever in the judgment of said executor and the said Brister the growth of the town may require, they to use their best judgment.

The house and lot in said town now occupied by Robert Luckett and near my residence, I give and bequeath to Mrs. R. W Williamson for and during her natural life, and at her death said house and lot to be sold by said executor with the advice of the said Brister as above directed.

It is my will that the proceeds of the sale of said real estate in the town of Greenwood, shall be loaned out or invested as the said executor shall think best, and the income alone to be given to Joseph Ditto Craig and his brother Loraine Craig until they both become of age, and on the maturity of the said Loraine Craig, the corpus of the proceeds of the sale of said real estate shall be equally divided between both of said brothers; should either die before maturity, then the survivor to inherit the whole on coming of age.

I give and bequeath to Asa Henry, commonly known as Gus Henry, the following described land in Leflore County, to wit: the south half of the north half and all that portion of the southwest quarter owned by

me which consists of about ten acres, in Section 20, township 19, range 1 east, to have in fee simple.

I give and bequeath to J. P. Henry, the nephew of my husband, the following land in Leflore County, to wit: Lots 2 and 6, in section 29, and the southeast quarter of section 20, all in township 19, range 1 east, to have and to hold in fee simple.

The remainder of all my real estate I give and bequeath to Joseph Ditto Craig and his brother Loraine Craig, for and during their natural lives, and at their death to go to the heirs of their bodies, with this proviso, that the income from said property first be applied to the payment of the legacies hereinafter named, and after said legacies are paid then said income shall also be charged with the payment of the annuities hereinafter named, and after the payment annually of said annuities then the remainder of said income shall be paid to said brothers by said executor.

It is my further will that my said executor shall take and keep exclusive charge of all said real estate not disposed of as aforesaid, or to be disposed of, until said Loraine Craig shall become of age, and on the maturity of the said Loraine Craig, who is the younger of the said two brothers, then said real estate not disposed of as herein provided, shall be turned over to them together with all the personal property on said land for their natural lives as aforesaid, with all monies on hand belonging to them as herein mentioned.

It is my will that all the personal property now on or which may be on my plantation at my decease shall be kept on said plantation for the use and benefit of the same.

It is my further will that my executor shall employ some competent man to manage and control said plantation until Loraine Craig shall become of age, if in the opinion of said executor it shall be to the best interest of said estate to do so. Said executor to exercise his best judgment for the interest of said estate in the management of said property.

It is my further will that said executor shall as soon after my decease as practicable, pay the following parties the amounts set opposite their respective names, to wit:

To Thomas Henry's sole daughter, a niece of my husband, whose name I cannot now give, the sum of $1,000.00.

To the sister of Dick Elliott, which sister is a niece of my husband, being unable to call her name, the sum of $1000.00, both of said parties live in North Carolina.

To Mrs. Chappie C. Craig, the sum of $1000.00: Mrs. Jennie Colmery, the sum of $1000.00: Mrs. Anna Deles, of Yazoo City, the sum of $1000.00: Mrs. Annie McNeill the sum of $1000.00: Mrs. Susie Yerger the sum of $500.00: Judge R. W. Williamson the sum of $500.00: Mrs. Helen Chapman the sum of $500.00: and should her home he encumbered, then I wish my executor to see that the encumbrance is credited with said sum: Mrs. Lizzie Payne the sum of $100,00: Charlie Wells the sum of $100.00: Mrs. M. Ellington the sum of $100.00.

Should there not be enough money on hand at my decease with which to pay said legacies, then it is my will that what money may be on hand, after all debts have been paid, shall be prorated in the payment of the same and the remainder of said legacies to be paid from the income from the plantation as soon as practicable.

It is my further will that the following accounts shall be paid by my executor annually to the parties herein named during their natural lives:

Mrs. Henrietta McCaskill, the widow of Allen McCaskill, the sum of $300.00 per year. My reason for giving this annuity to Mrs. McCaskill is this: During the war my husband purchased from the husband of the said Mrs. McCaskill certain real estate in this County and paid for the same during the war in the money then used in paying debts, to wit: Confederate money, which money afterwards became worthless on account of the failure of the Confederacy. While recognizing there is no legal liability on either me or my husband, and also recognizing the fact that there was no fraud or intentional injury perpetrated in the payment of said debt with Confederate money, yet I have always felt that an injury was suffered and that the property was acquired without a just moral consideration, and I, therefore, in this way and at this time, take occasion to alleviate in some way the hardships of adversity under which she is now surrounded.

To Mrs. Willie Kennan, formerly Miss Willie Luts, the sum of $300.00 per year: it may be that I gave her married name incorrectly, if so, then I desire my executor to ascertain her correct married name: said party is a relative of mine and once lived with me.

To Mrs. Pricscilla Chickering the sum of $300.00 per year.

To Mrs. Mary Caldwell the sum of $100.00 per year.

Said above named annuities are to be a charge on the income from said plantation and are to be paid from the same. By the use of the word plantation, I mean all farming lands of which I may die possessed, except those herein disposed of.

I give and bequeath to L. P. Yerger the portraits of myself Dr. J. P. Henry and my son, Joseph Jackson.

I give and bequeath to Loraine Craig what is known as the ‘ Davis' table, formerly owned by President Jefferson Davis, and to Ditto Craig I give and bequeath the large mirror in the parlor.

I give and bequeath to the infant daughter of Mrs. J. Gardner my diamond ring.

The remainder of my personal property not otherwise disposed of, I give and bequeath to Mrs. Chappie C. Craig, with the understanding and proviso that Mrs. Sallie Morgan Green shall have the right to select from any household property that I may die possessed of, any one article that she may choose to select, not herein bequeathed to any one else.

It is my further will that my physicians, Drs. T. R. Henderson and S. L. Brister, shall be paid well for their services to me. I take this method of expressing to them my high and sincere appreciation for the services rendered to me in my last illness.

It is my further will that my executor shall, as soon as practicable, have my grave and that of my husband enclosed by a strong iron railing fence, and shall also have the grave of the father and mother of my husband, in Berie County, N.C. enclosed by the same kind of fence. Said executor shall also have the two graves of the two brothers of my husband, in the cemetery near Greenwood, also enclosed with an iron railing fence.

Should my husband outlive me, then it is my will that my property shall be kept intact during his natural life, that is, the income from the same for his support and maintenance.

Having unbounded confidence in the...