Lee v. Foley, 39642

• Decision Date: 13 June 1955
• Docket Number: No. 39642,39642
• Citation: 61 A.L.R.2d 209,80 So.2d 765,224 Miss. 684
• Parties: , 61 A.L.R.2d 209 Mary Foley LEE, by Mrs. T. R. Parks, Guardian ad litem, v. Earle FOLEY et al.
• Court: Mississippi Supreme Court

Page 765

80 So.2d 765

224 Miss. 684, 61 A.L.R.2d 209

Mary Foley LEE, by Mrs. T. R. Parks, Guardian ad litem, v. Earle FOLEY et al.

No. 39642.

Supreme Court of Mississippi.

June 13, 1955.

Frank O. Wynne, Jr., Cleveland, for appellant.

W. W. Simmons, Hugh F. Causey, Cleveland, for appellees.

GILLESPIE, Justice.

The principal question involved on this appeal is whether the will of B. A. A. Foley made a gift to his children as individuals or as a class. The testator was 72 years of age on March 31, 1941 when he made and published his will. At that time, the testator had eight living children and one deceased child. In the third paragraph of his will, the testator disposed of his real estate. He began the paragraph with these words: 'At the present time, my children are (naming his eight living children).' The will then recited the ownership of certain real estate and provided that it should not be sold or divided but that it should be held intact, after which he provided, 'and at my death my children then living hold said property and receive only the rents,' etc. Thereafter, in said paragraph 3, the will provided that 'as each of my children shall die, the right to use said rents, issues, and profits shall become vested in my children surviving said deceased child or children, so that it is my will that the last surviving child of my children shall receive and become vested of an unqualified ownership in said property in fee simple.'

Subsequent provisions of the will denied his grandchildren, children of the deceased son, a share in the real estate, and bequeathed to each of said grandchildren the sum of $10. It provided that if any of his other children should predecease the testator, the child or children of such deceased child should receive $10 each. The residue of the estate was given 'to my children living at my death, share and share alike.'

In a later paragraph dealing with the manner of handling the real estate, the testator referred to 'my said children.' Over five years later, on March 4, 1946, the testator filed a petition for the adoption of the appellant, Mary Foley Lee, who was then eleven years of age, and in which petition the testator prayed that Mary Foley Lee be adopted 'ad his child', conferring upon it 'all rights of maintenance, support, moral training, education, protection, care, custody, and control, with the right of inheritance.' The decree of adoption provided for the adoption of the said Mary Foley Lee by the testator as his daughter, 'with all the civil rights and benefits, with the right of inheritance, and that her name shall remain Mary Foley Lee.' The testator died about six years after the adoption of Mary Foley Lee, and his will was duly probated.

Petition was filed to construe the will to determine the rights, if any, of Mary Foley Lee thereunder. The chancellor held that appellant, Mary Foley Lee, was not entitled to any part of the estate of the testator under the will, or as an heir at law, or otherwise. She appeals.

The first contention of the appellant is that construing the will as a whole in the light of the adoption petition and decree, the testator intended that appellant take as a child under the will. She arrives at this contention as follows: (a) The testator, in paragraph 3 of his will, made a gift to a class, his children living at the time of his death; and (b) that appellant is a member of that class by virtue of the adoption. This is the only means by which appellant could become a beneficiary under the will since she was not a named beneficiary.

A devise or bequest to a number of persons not individually named but all within the class described by the testator, the numbers of which may increase or decease, is, generally, a gift to a class and not to separate...