Holcomb v. Holcomb

• Decision Date: 18 February 1935
• Docket Number: 31567
• Citation: 159 So. 564,173 Miss. 192
• Court: Mississippi Supreme Court
• Parties: HOLCOMB et al. v. HOLCOMB

159 So. 564

173 Miss. 192

HOLCOMB et al. v. HOLCOMB

No. 31567

Supreme Court of Mississippi

February 18, 1935

Division A

1 WILLS.

A "codicil" is a clause or clauses added to a will by testator after will has been executed, and does not revoke will, but is to be construed with it as one entire instrument.

2 WILLS.

A codicil may confirm, revoke, explain, alter, modify, add to or subtract from any one or all the provisions of a will, and is never considered or construed independently of original will.

3 WILLS.

If dominant intent and purpose of maker of codicil may be ascertained from codicil and will, it is immaterial how awkwardly it may be expressed if clearly stated, and words are construed liberally to carry out that purpose.

4. WILLS.

Object of court is to find intention of testator if it be expressed in will, and testator has right to execute will as he wishes if it does not violate law.

5. WILLS. Paper executed by testator subsequent to will and witnessed by two persons, wherein testator referred to provision in will for son to receive three thousand dollars and then stated that he had loaned son two thousand two hundred dollars and "expect same to be repaid or deducted" from legacy, held valid as codicil, in view of dispositive character of "expect."

"Expect" is defined as to look for mentally, to look forward to, as to something about to happen or come, to have a previous apprehension of whether good or evil, to look for with some confidence, and once meant to demand, to require.

6. WILLS.

Statute pertaining to revocations of wills applies only to express revocation and has no application to an implied revocation (Code 1930, section 3551).

7. WILLS.

Implied revocation of wills is recognized in Mississippi.

8. WILLS.

Statute pertaining to revocations of wills held not to prevent implied revocation through codicil directing sum loaned legatee by testator to be repaid or deducted from his legacy (Code 1930, section 3551).

9. WILLS.

Words of desire used to declare manner of disposition of testator's property are words commanding disposition and are testamentary in character.

HON. N. R. SLEDGE, Chancellor.

APPEAL from chancery court of Grenada county HON. N. R. SLEDGE, Chancellor.

Proceeding by E. D. Holcomb and others against Dr. P. D. Holcomb. From a decree of dismissal, petitioners appeal. Reversed and remanded.

Reversed and remanded.

Cowles Horton, of Grenada, for appellants.

Under the law no particular form is required of a will or codicil.

In the construction of a codicil or a will, the object is to ascertain the intent of the testator and discover what he desires in connection with his estate after his death.

Culley v. Rhodes, 124 Miss. 651; Bullard v. Bullard, 132 Miss. 549; Woesner v. Smith, 136 Miss. 900; Byrd v. Henderson, 139 Miss. 140; Scott v. Turner, 137 Miss. 648; Countiss v. King, 149 Miss. 70; Thompson on Wills, secs. 32 and 150; 40 Cyc. 1096.

Codicils form a part of, and must be construed in connection with, the wills to which they are attached and never independently.

Vaughn v. Bunch, 53 Miss. 513; Joiner v. Joiner, 117 Miss. 517; 40 Cyc. 1216; Thompson on Wills, secs. 32 and 463.

If from this codicil we may ascertain the dominant intent which its maker had in mind in its execution it is sufficient in form, however awkwardly that intent may have been expressed.

Davenport v. Collins, 96 Miss. 718; 1 Redfield, Wills (4 Ed.), 174-5.

The testator expressly declares that he "expects" the deduction to be made. This goes further than the expression of a mere request, but if he had merely requested that to be done his "request" would have been "imperative" and "his intention must be carried into effect if it be not opposed to the law of the land."

Wade v. Society, 7 S. & M. 696; Red v. Powers, 69 Miss. 242; Lucas v. Lockhart, 10 S. & M. 470; 1 Redfield, Wills, page 176, and sec. 12, page 175; Gore v. Lyon, 105 Miss. 652.

"One may do what he will, within legal limits, with his own" (Hiserodt v. Hamlett, 74 Miss. 44), and "has a right to make his will as he pleases so that it does not violate the law."

Law v. Bank, 162 Miss. 63; 40 Cyc. 1922, 1923; Thompson on Wills, sec. 433; In re LeFever, 39 Pa. S.Ct. 189; Chiles v. Gallagher, 67 Miss. 421.

This money, as the facts disclose, was never a gift. It was a "loan by way of advancement" to be repaid or deducted expressly from this original three thousand dollar legacy. Conceding that the codicil of 1933 is not sufficient in law to be probated, appellee's legacy under the original will did not cancel appellee's obligation to repay this money under the law and the facts of this case.

28 R. C. L. 298, sec. 276; 40 Cyc. 1889, 1890; Harris v. Ragsdale, 111 Miss. 710; Thompson on Wills, sec. 184.

If appellee's claim that the loan of this money created a simple debt is correct, the result must be the same for in any event petitioners have the right to off-set this credit against the three thousand dollar legacy under the original will.

11 R. C. L. 245, sec. 276; 18 Cyc. 621; Greene v. Greene, 145 Miss. 113; Adams v. Yancy, 105 Miss. 233; Carter v. Witherspoon, 156 Miss. 602; Ellis v. Berry, 145 Miss. 674; Harris v. Townsend, 101 Miss. 590.

E. W. Smith, of Clarksdale, for appellee.

It appears that the executor, in effect, was trying to collect a debt allegedly owing D. L. Holcomb, deceased, from appellee by petition in a probate matter pending in a county other than the county of the alleged debtor, and deny the alleged debtor of a trial by jury in the circuit court of the county of his residence. The lower court held this proceeding wholly unauthorized and, of course, did not proceed to try this issue. The law in such matters is settled.

Section 156, Constitution of Mississippi of 1890; Sec. 352, Code of 1930; Pate v. Taylor, 5 So. 515; Phillips v. McLaughlin, 26 Miss. 597; 23 C. J. 1192, sec. 425; 24 C. J. 762, sec. 1885.

But, appellants say they may invoke the doctrine of retainer because respondent owes the money to the estate anyway and he is seeking his legacy. But, when the record disclosed that there was a sharp issue presented in the pleadings and that respondent was not and could not seek the legacy, the six months' period not having elapsed, the lower court again held this issue not properly before him.

23 C. J. 1192, sec. 425; 11 R. C. L. 245, sec. 276; 24 C. J., page 1885.

It, therefore, appears from the record that the whole proceeding was based entirely on the paper writing extended in the petition and based on the statements made therein by D. L. Holcomb, deceased. Probate of this paper was sought. This was denied.

Words in a will which are merely expressive of a desire or intention on the part of the testator, and are merely advisory or precatory in character, may be useful in resolving doubts in other parts of the will, but they do not amount to a testamentary disposition and do not control or alter express dispositions in the will, unless it is apparent that it was the testator's intention that such words of desire or intention should be mandatory.

40 Cyc. 1404; Newboles v. Newboles, 273 S.W. 1027; 68 C. J. 644, sec. 270; Young v. Wark, 76 Miss. 829; In re Richardson, 94 Cal. 65; 1 Jarman on Wills; Sullivan v. Jones, 130 Miss. 101; Wilkinson Estate, 298 P. 1037.

The word "expect" has never been interpreted as creating an obligation even when used in contracts.

Atlantic Coast Line R. Co. v. Wells, 60 S.E. 170, 171, 130 Ga. 55; Cleveland, C. C. & St. L. Ry. Co. v. Shea, 91 N.E. 1081, 1083, 174 Ind. 303; Coe v. Rosene, 118 P. 881, 882, L.R.A. (N.S.) 577, Ann. Cas. 1913C 741; Brown v. Franklin, 157 Miss. 38, 47.

Where there is an absolute or unlimited devise or bequest of property, a subsequent clause expressing a wish, desire or direction for its disposition, or an expectancy or hope after the death of the devisee or legatee, will not defeat the devise or bequest nor limit the estate or interest in the property.

40 Cyc. 1404; Minnor v. Russell, 126 Miss. 240; State of New Jersey v. Mayor of Atlantic City, 8 L.R.A. 697; Williams v. Allison, 33 Iowa 278; Benkert v. Jacoby, 36 Iowa 127; Re Burbank's Will, 69 Iowa 378; McKenzie's App., 41 Conn. 607; Jackson v. Bull, 10 Johns 20; Mitchell v. Morse, 77 Me. 423; Ramsdell v. Ramsdell, 21 Me. 288.

A bequest is not necessarily cut, down by precatory words and there are many cases in which the courts have refused to construe such words as constituting a trust or otherwise cutting down a prior gift.

28 R. C. L. 243; 68 C. J., page 801, sec. 485, and page 812, sec. 506.

A codicil has been defined as some addition to or qualification of one's last will and testament.

28 R. C. L. 197; 68 C. J., page 412, sec. 2, and page 644, sec. 270; Harvey v. Johnson, 111 Miss. 566, 573.

The purpose of a codicil is to add to, qualify or modify a will. The instrument here totally fails to accomplish this purpose.

Freaner Johnson et al. v. Delome Land & Planting Co., 77 Miss. 15, 27; Joiner v. Joiner, 117 Miss. 507; University v. Pinckney, 55 Md. 365.

A gift once made by will is not cut down by a subsequent codicil, unless the intention of the testator to that effect appears clearly or by necessary implication.

Newboles v. Newboles, 123 S.W. 1027.

The court cannot speculate on what D. L. Holcomb, deceased, might have intended. Wills are solemn instruments and are treated with grave concern by the courts.

Sections 3550 and 3551, Code of 1930.

The courts have zealously held that the law governs with strictness and this regardless of what the testator might have intended.

28 R. C. L., page 109, sec. 60; 68 C. J., page 651, secs. 275, 276.

The doctrine of strict construction is adopted in determining the...