Henry v. Henderson

• Decision Date: 02 March 1903
• Citation: 33 So. 960,81 Miss. 743
• Court: Mississippi Supreme Court
• Parties: DELIA W. HENRY ET AL. v. THOMAS R. HENDERSON, EXECUTOR

33 So. 960

81 Miss. 743

DELIA W. HENRY ET AL. v. THOMAS R. HENDERSON, EXECUTOR

Supreme Court of Mississippi

March 2, 1903

FROM the chancery court of Leflore county. HON. A. MC. KIMBROUGH Chancellor.

Mrs Henry and others, appellants, were complainants in the court below; Henderson, executor, was defendant there. From the final decree rendered in the cause by the court below the complainants appealed to the supreme court, and the defendant prosecuted a cross-appeal. The case was once before in the supreme court, on appeal by Mrs. Henry and others complainants, from a decree sustaining a demurrer to the bill of complaint. The decision then made, reversing the decree is reported, Henry v. Henderson, 79 Miss. 452.

Mrs. L. H. Henry died in 1898, leaving a will in which T. R. Henderson was named as executor, and he duly qualified as such and took charge of the large estate, both real and personal, that belonged to the testatrix. By her will Mrs. Henry made various bequests and devises and provided a number of legacies to various parties, and directed them to be paid out of the money on hand at the time of her death, and any balances. unpaid to be paid out of the income of her estate. Certain annuities were also fixed upon this income, and to some of the complainants certain lands were bequeathed, and to others legacies. The residue of the estate was to go into the hands of the executor, to be by him managed and controlled for the benefit of two children, named Craig, nephews of the husband of testatrix, until the youngest became of age. In 1898 a codicil to the will was executed, revoking certain of the provisions of the will and gave to complainants certain lands in fee simple, and, afterwards, a second codicil was made, in which it was provided that the legal title to the land devised by the first codicil to appellants should not vest until after her husband's death and until after all the legacies were paid. This codicil further provided that these lands, as well as all of testatrix's other lands, should be taken charge of by the executor and used and controlled by him, and the income from them was directed to be used exclusively for the benefit of testatrix's husband, J. P. Henry, during his life, and then to be used for the payment of any legacies unpaid, and, after the husband's death and the payment of all legacies, complainants were to have the said property. The will further provided for the payment of an annuity of $ 300 to Mrs. Delia W. Henry during the lifetime of J. P. Henry, who died in about one and one-half months after the testatrix died. The will further provided that the executor should use the money on hand, with the proceeds of the sale of certain named property, in making and gathering a crop for the year.

The executor made the crop of 1898, and, not having enough money with which to pay all the debts and legacies, after putting aside money with which to make the crop, he made and gathered another crop in 1899, out of the proceeds of which he paid all legacies and debts, and had a surplus of about $ 2,000. In 1899 he rebuilt upon the land belonging to the residue of the estate a ginhouse, at a cost of $ 2,000, without any order of the court. He paid Mrs. Delia W. Henry only $ 100 of the annuity provided for in the will, and refused to turn over to complainants any share of the surplus from the crops of 1899.

Complainants asked that the executor pay the $ 200 unpaid of the annuity to Mrs. Delia W. Henry; that he pay to them the entire income of the land devised to them for the year 1899, or, if mistaken in that, then that he pay them their pro rata share of the surplus for that year, and also that he pay them their proportionate part of the amount expended for the gin-house outfit; and for a construction of the will.

The court below rendered a final decree, giving complainants their proportionate parts of the surplus for the year 1899, but denied them any part of the money expended for the ginhouse outfit, and denied Mrs. Delia W. Henry the balance of the annuity.

Decree affirmed.

S. R. Coleman, for appellants.

Mrs. D W. Henry is clearly entitled to have received from the executor all of the annuity as provided in the second codicil of the will. It stands out clearly and distinctly that, having withdrawn the land devised in fee to her and her six children in the first codicil, the intention of the testatrix was to give Mrs. Henry this amount as a support, while the property was temporarily withheld for other purposes.

It was not contemplated or intended, nor was it necessary, that this property, devised in fee to complainants, should be held by the executor for more than the crop season of 1898. J. P. Henry, an aged paralytic, whose condition his wife knew, could hardly outlive her, and if so, then not for long, so the testatrix limited the making of "a crop" ("the crop") by her executor to that year.

As in her will she directed the payment of the legacies out of the money on hand, and any residue to be charged to the income, so, by her last codicil, she provided a fund, which, together with the income of the year 1898, she knew would be ample to pay and which would have paid all the legacies, as shown by the testimony of the executor, and the property devised to complainants should have been turned over to them at the end of that year.

As the will of the testatrix made no reservation of any money to carry on the farming operations on the residue of the estate, so it is idle to contend that the funds provided in the last codicil were for that purpose, and a sufficient amount from the crop of 1898 and the crop of 1899 was authorized to be kept by the executor for farming operations, to go to the end of his duties as a part of the residuum of the estate.

Construe the will and its codicils according to the intention of the testatrix, as reached by the rules of common sense and the ordinary and everyday meaning of words, is all that we ask, and we are satisfied that Mrs. Henry will get her $ 200 balance and interest, and that the complainants will at least get the rental value of their property for the year 1899. In 1900 the land devised to them was turned over by the executor.

A. F. Gardner, for appellee.

By reference to the last codicil made on the 20th day of January, 1898, it will be seen that it was clearly the purpose and intention of the testatrix to provide a fund which should be separate and distinct from the remainder of the estate, with which to make a crop for the year 1898, this fund to consist of what money was on hand at her death, together with the proceeds of the sale of any personal property raised on said plantation, and which might be unsold at her death, and all notes due her. This fund was not to be touched or used in any way except for the purpose of making a crop.

Complainants contend that it was the intention of the testatrix that this fund which was provided to make a crop, should also be used, with the proceeds of the sale of the crops, for the purpose of paying off the legacies and debts, but such, it is patent from the reading of the last codicil was not her intention.

It will also be seen from the last codicil that the testatrix provided "that it is my further will that the bequest made by me to Mrs. D. W. Henry and her six children of certain land in Leflore county as shown by said codicil made on January 4, 1898, shall not take effect until after the death of my husband and until after all legacies are paid, that is to say, the property bequeathed as aforesaid to her and her children shall be used, controlled and managed by my executor until after the death of my husband, and until after the payment of all legacies; and the income from said property shall be used exclusively for the benefit of my husband, and at his death shall be used as aforesaid, with my other property, for the payment of any legacies unpaid. After his dearly, and after all legacies are paid, then they are to have said property as hereinbefore provided." The next codicil of the will provides a fund with which to make a crop, and also provides "that should there be more than enough money on hand at my death, together with the proceeds of the sale of said personal property, and of said notes, then my said executor, who has full authority to act in the premises, shall, at his discretion, should there not be enough money with which to pay all the legacies herein provided in full, prorate the amount over and above the amount necessary to make said crop. It being my intention that no legacies shall be paid until after my executor shall become satisfied that he has enough money on hand, devised as aforesaid with which to make and gather said crop."

Can it be said from this provision in the will that the testatrix intended that this fund with which to make a crop should be used to pay legacies? Is it not evident from this provision that the legacies were to be paid from any surplus arising over and above this fund necessary with which to make a crop? Complainants were to have no interest in the property--that is, the property was to be used, controlled and managed by the executor until after all legacies were paid, and until that contingency happened complainants had no interest whatever in the property.

The surplus for the year 1899 was a part of the income of the common property, and as such belonged to the Craig boys, the beneficiaries under the will. By reference to the first part of the will it will be seen that the testatrix devised the real estate to the Craig boys during their natural lives, and provided that the income from said property should be paid annually to said minors, after the payment of annuities--in other words, the income from the property under the will went to the Craig...