Mills v. Mills, 47072
| Decision Date | 29 June 1973 |
| Docket Number | No. 47072,47072 |
| Citation | 279 So.2d 917 |
| Parties | Marguerite C. MILLS v. Ruby G. MILLS, Administratrix, C.T.A. |
| Court | Mississippi Supreme Court |
J. K. Henry, Union, Edmund J. Phillips, Jr., Newton, for appellant.
O. B. Triplett, Jr., O. B. Triplett, III, Forest, for appellee.
William Henry Mills, Sr. died testate 1 in Newton County, Mississippi on April 20 Mrs. Ruby G. Mills, appellee, was appointed Administratrix, C.T.A. and in her final account claimed that she was entitled to be paid from the assets of the estate the following:
1969 survived by his widow and 12 children, 8 of whom were by his first marriage, and 4 of whom were by his second marriage to his widow, Mrs. Ruby G. Mills. Testator left a personal estate valued at $2,317.84 and an undivided one-half interest in 89 acres of land which was his homestead.
Widow's allowance .................. $3,000.00
Probated claim of Administratrix
C.T.A.............................. 1,453.14
Monument for grave of
decedent ............................ 312.90
Funeral expenses ...................... 532.50
Taxes on 89 acres of land .............. 89.88
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Total .............................. $5,388.42
In her final account, appellee alleged that the undivided one-half interest of decedent should be sold 'subject to the widow's homestead rights' and that the proceeds derived from the sale should be applied first, to satisfy the claims of appellee; second, solicitor's fee as allowed by the court; third, commission to appellee as Administratrix, C.T.A.; fourth, all court costs accrued in the cause; and finally, upon payment of the above the balance remaining should be distributed equally among the devisees except for Mrs. Audrey M. Darr who should receive nothing because she was not specifically named in the will and except for Louretta Mills Curry and the heirs of Jeanette Mills Loper who should receive nothing because of paragraph 5 of the will which provided that each of their shares be reduced by $4,000 and the shares would not exceed this sum. The 8 children of decedent by his first marriage, appellants, filed a motion for disallowance of the probated claim of appellee in the amount of $1,453.14 on the basis that the property sold to satisfy the claim was exempt property and not required by law to be used for the payment of debts; that no non-exempt property was available except the funds in the checking account for payment of the probated claim. Appellants also filed a motion to vacate the decree of April 16, 1971 which allowed Appellants answered the final account, denied that the one-half undivided interest of decedent in the realty should be sold, but that the entire realty, including appellee's one-half undivided interest, should be sold, or the property partited, and the portion set apart as the property of decedent, should be sold. Appellants denied that appellee had any homestead rights in the realty, denied that exempt personal or real estate should be sold or applied to satisfaction of the widow's allowance, expenses of administration or the claim of appellee as a creditor.
appellee a widow's allowance in the amount of $3,000.00. Appellants then filed a petition to partite in kind the undivided one-half interest of decedent in the 89 acres of land and alleged that a sale of an undivided one-half interest in the entire 89 acres would not bring as much as the sale of an entire interest in that portion of the land set apart after partition in kind. Appellants also filed a petition for construction of the will and alleged that it was the intention of testator to devise his property to all of his children, subject to the life estate of his widow, and that the name of Mrs. Audrey M. Darr was inadvertently omitted from the list of children. In this petition appellants allege that the deeds to W. H. Mills and to Lola Mae Tatum dated August 27, 1964 of separate parcels of land and the deeds to the same parties dated July 22, 1968 of separate parcels of land should be treated as advancements to William H. Mills, Jr. and Lola Mae Tatum.
At the time of the trial all of the 12 children of decedent were living with the exception of Jeanette Mills Loper who died on June 29, 1969. Jeanette Mills Loper was survived by her husband, Paul D. Loper, who died shortly thereafter, leaving as his sole heirs at law his mother, Claudie Mae Loper and three brothers, James C. Loper, Tony Loper and Harry Loper.
Appellants argue that the deeds executed by decedent and appellee to their children, William H. Mills, Jr. and Lola Mae Tatum should be treated as advancements but the general rule is that the doctrine of advancements does not apply except in cases where a decedent dies intestate. The rule is stated in 3 Am.Jur.2d Advancements Section 10 (1962) as follows:
Inasmuch as the doctrine of advancements is based on the assumed desire of the donor to equalize the distribution of his estate among his children, the very foundation of the doctrine prevents it from applying unless the ancestor dies wholly intestate, and that, in the absence of any statutory provision, is the general rule.
Section 475 Mississippi Code 1942 Annotated [1956] provides that advancements may be brought into hotchpot, but the statute is applicable only in the case of a person dying intestate. Since decedent died testate, the conveyances did not constitute an advancement.
Appellants next contend that the devise to these two children of an undivided interest in the entire estate, subject to the life estate of the widow, was adeemed by the delivery of the aforesaid deeds. In 96 C.J.S. Wills § 1172 at 985 (1957), ademption is defined as follows:
'Ademption' is the term used to describe the act by which a testator, by payment or gift in his lifetime, confers on a legatee the benefit which he had proposed to give by will at his death under a general or demonstrative legacy, or else the act by which a specific legacy has become inoperative because of the withdrawal or disappearance of its subject matter from the testator's estate in his lifetime.
The general rule governing gifts subject to ademption is stated in 96 C.J.S. Wills § 1173 at 987 (1957) as follows:
'Ademption,' in the strict sense of the word, as discussed supra § 1172, applies only to specific legacies, and legacies of Since the two children were devised an undivided interest in the entire estate, there was no ademption.
the proceeds of specific property, and not to those which are in their nature general, or demonstrative, and where the bequest is of the entire estate, no matter how it may change in form or character, there is no ademption as to such gift. . . .
The chancellor held that the deeds were supported by a valuable consideration and we hold that the evidence supports this finding of fact. The land conveyed by these deeds does not constitute any part of the estate of the decedent and we affirm this action of the chancellor so holding.
Appellants next contend that the court erred in allowing appellee $3,000 for a widow's allowance. The amount of the allowance is not attacked, but appellants urge that appellee was not being supported by her husband during his lifetime because he had only a small income from social security and was ill for many years before his death. The chancellor found that appellee and decedent were living together as husband and wife at the time of his death and he was therefore under a duty to support her and that the widow's allowance was proper under Section 561 Mississippi Code 1942 Annotated (1956). Appellants rely on In Re Marshall's Will, 243 Miss. 472, 138 So.2d 482 (1962) where this Court upheld a chancellor's denial of a widow's allowance. The widow had lived apart from her husband for many years and did not show that she was away from him without fault on her part. Marshall was correctly decided, but the facts on which the decision were based are not present in this case. Decedent was under a duty to support appellee and the allowance was proper. A widow is entitled to an allowance for one year's support for herself and minor children under Section 561. The statute applies to cases of testacy and intestacy alike except in the case of wills where it clearly appears that the provisions in the will for the widow and minor children of the decedent are in lieu of the one year's support provided for by the statute. Beckett v. Howorth, 237 Miss. 394, 115 So.2d 48 (1959); Harwell v. Woody, 206 Miss. 863, 41 So.2d 35 (1949); Westbrook v. Shotts, 200 Miss. 456, 27 So.2d 683 (1946); Gilmer v. Gilmer, 151 Miss. 23, 117 So. 371 (1928); Stewart v. Stewart, 132 Miss. 515, 96 So. 694 (1923); Whitehead v. Kirk, 106 Miss. 706, 64 So. 658 (1914); Turner v. Turner, 30 Miss. 428 (1855); Edwards v. McGee, 27 Miss. 92 (1854); McReary v. Robinson, 20 Miss. 318 (1849). We affirm the allowance of a year's support to appellee.
The chancellor held that appellee owned dairy cattle which were located on the farm of the parties and that decedent owned 10 head of beef cows and 1 bull which were sold in the course of the administration of the estate for the sum of $1,438.08. Decedent, during his lifetime, had borrowed money from a bank and gave as security his beef cattle and the dairy cattle of appellee. After the death of decedent, appellee sold her dairy cattle for approximately $800 and applied the proceeds on the note due the bank. She sold 5 calves which were offspring from the beef cattle of decedent for $506.34 and applied this sum on the note and paid the balance of $147.80 out of money earned by her.
Appellant makes several contentions with reference to the allowance of the probated claim of appellee; one being that appellee discharged a portion of the debt with money received from the sale of 5 calves. Appellee was devised and bequeathed a life estate in all the property of decedent and was entitled to the natural increase from the livestock of...
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