Mississippi College v. May, No. 40969

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtEmmette P. Allen, Brookhaven; ETHRIDGE; ROBERDS; McGEHEE, C. J., and LEE; HALL
Citation235 Miss. 200,108 So.2d 703
Docket NumberNo. 40969
Decision Date09 February 1959
PartiesMISSISSIPPI COLLEGE et al. v. Felix MAY et al.

Page 703

108 So.2d 703
235 Miss. 200
MISSISSIPPI COLLEGE et al.
v.
Felix MAY et al.
No. 40969.
Supreme Court of Mississippi.
Feb. 9, 1959.

Page 705

[235 Miss. 203] Wells, Thomas & Wells, Jackson, Brunini, Everett, Grantham & Quin, Vicksburg, Dent, Ward, Martin & Perry, Vicksburg, Milton H. Mitchell, Jackson, Cecil F. Travis, Jackson, Willis T. Matthews, Jackson, for appellant.

[235 Miss. 205] Emmette P. Allen, Brookhaven, J. T. Drake, Jr., Port Gibson, for appellee.

[235 Miss. 208] ETHRIDGE, Justice.

This case involves issues concerning interpretation and application of the mortmain provision of the Mississippi Constitution, Sec. 270, and the mortmain statute [235 Miss. 209] enacted pursuant to it. Miss.Code 1942, Sec. 671. These enactments limit the amount and time of bequests or devises by will to charitable, religious, educational or civil institutions, and the period which such institutions may hold a devise of land.

Appellees, Felix May and the other heirs at law of Dr. J. V. May, filed a bill of complaint in the Chancery Court of Claiborne County against appellants, defendants below, Mississippi College, a corporation; the Foreign Mission Board of the Southern Baptist Convention, a corporation; Anderson-Tully Company; and several of the heirs of Dr. May who did not join in the bill of complaint, but who confessed its correctness. General demurrers to the amended bill, filed by the College, the Foreign Mission Board, and Anderson-Tully Company were overruled by the trial court. From that action the College, the Foreign Mission Board and the Company took an interlocutory appeal. Because the issues are presented on general demurrers, we assume the accuracy of the facts alleged in the bill. In abbreviated form, they are as follows:

Dr. J. V. May, of Claiborne County, died testate on May 9, 1940. His wife and only child had predeceased him, and at the time of his death he left surviving him neither a wife nor children, nor children of any children. The complainants and named defendants are his heirs at law. His holographic will was probated on May 25, 1940.

Page 706

Part of the estate he owned at his death was a planatation formerly known as Magnolia Hill, consisting of approximately 465 acres in Claiborne County.

Item IV of the will provided: 'To Mississippi College, Clinton Mississippi, I devise and bequeath my 465 acre farm in district two Claiborne County Mississippi, at the proper time the same is to be converted into cash and held as a perpetual trust fund or endowment, and the proceeds therefrom shall annually go to the support of Christian Education in that institution, there shall be [235 Miss. 210] four or more annual scholarships and no scholarship shall exceed one hundred dollars. ($100.00) in value, members of the Port Gibson Baptist Church and of the therein association who are qualified and desire to prepare themselves as Christian workers shall have first consideration, ministerial Students shall have next or second consideration, as a Memorial to Dr. and Mrs. J. V. May.'

By Item VII he devised certain shares of stock to the Foreign Mission Board 'as a perpetual endowment.' Proceeds from these shares were directed to be used annually by the Board in support of mission work throughout the world.

Item X of the will, which appellants say is a general residuary clause, states: 'After the above allications (sic) have been made and all of my debts are paid, my desire is that all of the rest of my holdings including cash and balance of annuity in N. Y. L. Ins. Co. be used to supplement Item VII above; increasing said fund by that amount and subject to same terms and for same purpose, when there are no ligitimate (sic) applicants for said scholarship (Item V) then Item X cont. the amount of that year's earnings shall be transferred to Item IV for the benefit of Ministerial Students according to the terms of Item IV.'

Mississippi College, which is part of and under the control and supervision of the Mississippi Baptist State Convention and the Louisiana Baptist State Convention, and whose primary purpose is the teaching of religious education to its students, became vested with title to the lands conveyed to it in Item IV of the will. But the College's title was subject to the provisions of Sec. 270 of the Mississippi Constitution, adopted in 1940, and also subject to Miss.Code 1942, Sec. 671, enacted in 1940 before testator's death.

Dr. May was a medical doctor and also a lawyer. His will was holographic in form, wholly written and prepared by him. He was familiar with the proposed constitutional[235 Miss. 211] amendment when he wrote his will on December 11, 1939, and in fact discussed with some of his heirs the effect of these proposed changes in the law. Although Mississippi College became vested with title to the lands under Item IV, the bill averred it was permitted by Constitution, Sec. 270 to hold the same for a period of not longer than ten years. The ten years expired in May, 1950, but the College within that time did not sell or convey the land. Hence it was charged that, upon expiration of the ten years, the lands immediately reverted to complainants, heirs of Dr. May. In 1953 the College sold timber on the land to Anderson-Tully Company, and complainants asked for an accounting of the proceeds. An accounting was also asked for money received from an oil, gas and mineral lease and agricultural leases executed by the College on these lands.

Complainants prayed that the claims to the land by the College, the Foreign Mission Board and Anderson-Tully Company be cancelled as clouds on their title. In addition, the bill averred that, after institution of this suit, 'said Foreign Mission Board of the Southern Baptist Convention held a meeting of its duly authorized officers to act in such premises, in the course of which meeting, (they) passed a resolution clarifying and setting out their position in said matter, and your complainants would show, on information and belief, that said Foreign Mission Board of the Southern Baptist Convention, by said resolution did firstly, acknowledge that it is not claiming to be the owner of any interest

Page 707

in said lands by virtue of and under the terms of said Will, and secondly, that in the event of any such interest might be declared to be vested in said Foreign Mission Board of the Southern Baptist Convention by the court, that then in said event, that this defendant, Foreign Mission Board of the Southern Baptist Convention, would only be holding in trust for the other defendant, the Mississippi College.'

[235 Miss. 212] Prior to the adoption by the people in 1940 of an amendment to the State Constitution, now known as Sec. 270, the Constitution contained an extensive prohibition against the devise of land, or money to be obtained therefrom, by any will in favor of any religious or ecclesiastical corporation, or society or denomination, or to any person or body politic 'in trust, either express or implied, secret or resulting, either for the use or benefit of such' body, or 'for the purpose of being given or appropriated to charitable uses or purposes.' Such devises were null and void, and the heirs took the property as though no testamentary disposition had been made. Miss.Const.1890, Sec. 269. Sec. 270 of the 1890 Constitution prohibited also any legacy or gift by will of money or personal property to such bodies, and made the same null and void. See George Ethridge, Miss. Constitutions (1928) pp. 461-464.

In 1938 the Legislature proposed amendments to Constitution Secs. 269 and 270. Miss.Laws 1938, Extra.Sess., Chs. 94, 95. The proposed amendments were approved by an overwhelming majority of the voters in November 1939, and on January 18, 1940 the amendments were put into effect. Miss.Laws 1940, Chs. 325, 326. Former Section 269 was repealed, and Sec. 270 of the Constitution was amended to read as follows:

'No person leaving a spouse or child, or descendants of child shall, by will, bequeath or devise more than one-third of his estate to any charitable, religious, educational or civil institutions, to the exclusion of such spouse or child, or descendants of child, and in all cases the will containing such bequest or devise must be executed at least ninety days before the death of the testator, or such bequest or devise shall be void.

'Provided, however, that any land devised, not in violation of this section, to any charitable, religious, educational, or civil institution may be legally owned, and further may be held by the devisee for a period of not [235 Miss. 213] longer than ten years after such devise becomes effective, during which time such land and improvements thereon shall be taxed as any other land held by any other person, unless exempted by some specific statute.'

At the same session the Legislature enacted Ch. 318, Laws 1940, now Miss.Code 1942, Sec. 671, which authorizes the devisee to sell the lands within ten years, and, in default thereof, creates a reverter to or remainder in the heirs or other devisees under the will:

'No person leaving a spouse or child, or descendant of a child, shall, by will, bequeath or devise more than one-third of his estate to any charitable, religious, educational or civil institution, to the exclusion of such spouse or child, or descendant of such child; and in all cases the will containing such bequest or devise must be executed at least ninety days before the death of the testator, or such bequest or devise shall be void.

'Provided, however, that any land devised, in accordance with the terms of this section, to any charitable, religious, educational, or civil institution may be legally owned, and held by the devisee for a period not longer than ten years after such devise becomes effective, during which time such land and improvements thereon shall be taxed in the same manner and to the same extent as land held by any others is taxed, unless exempt by some specific...

To continue reading

Request your trial
8 practice notes
  • De Tenorio v. McGowan, No. 74--1082
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • March 19, 1975
    ...land was a vested remainder, which Mrs. McGowan could defeat at pleasure by complying with the Treaty. See Mississippi College v. May, 235 Miss. 200, 108 So.2d 703 Consequently, Hamilton McGowan was neither a tenant in common nor a joint tenant with his former sister-in-law. His interest co......
  • Methodist Hospital v. Slack, No. 48515
    • United States
    • Mississippi Supreme Court
    • April 20, 1976
    ...205, 5 So.2d 214 (1941); Mississippi School for the Blind v. Armstrong, 216 Miss. 348, 62 So.2d 369 (1953); Mississippi College v. May, 235 Miss. 200, 108 So.2d 703 (1959), and Crosby v. Alton Ochsner Medical Foundation, 276 So.2d 661 (Miss.1973) construing the new Early mortmain statutes h......
  • Hudson v. Moon, No. 97-CA-01059-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • January 28, 1999
    ...in the act that it is. Anderson v. Jackson Municipal Airport Auth., 419 So.2d at 1027. ¶ 11. Based on Mississippi College v. May, 235 Miss. 200, 222, 108 So.2d 703, 710 (1959), under mortmain, the heirs at law in the present case did have a vested remainder, subject to defeasance by MCF exe......
  • Mississippi State Highway Commission v. Daniels, No. 41119
    • United States
    • United States State Supreme Court of Mississippi
    • February 9, 1959
    ...have sustained the motion to exclude the testimony of this witness. But we do not mean to say that we would reverse for this error alone. [235 Miss. 200] After careful consideration of the cross-appellant's contentions, we are of the opinion that the case should be and is affirmed on Revers......
  • Request a trial to view additional results
8 cases
  • De Tenorio v. McGowan, No. 74--1082
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • March 19, 1975
    ...land was a vested remainder, which Mrs. McGowan could defeat at pleasure by complying with the Treaty. See Mississippi College v. May, 235 Miss. 200, 108 So.2d 703 Consequently, Hamilton McGowan was neither a tenant in common nor a joint tenant with his former sister-in-law. His interest co......
  • Methodist Hospital v. Slack, No. 48515
    • United States
    • Mississippi Supreme Court
    • April 20, 1976
    ...205, 5 So.2d 214 (1941); Mississippi School for the Blind v. Armstrong, 216 Miss. 348, 62 So.2d 369 (1953); Mississippi College v. May, 235 Miss. 200, 108 So.2d 703 (1959), and Crosby v. Alton Ochsner Medical Foundation, 276 So.2d 661 (Miss.1973) construing the new Early mortmain statutes h......
  • Hudson v. Moon, No. 97-CA-01059-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • January 28, 1999
    ...in the act that it is. Anderson v. Jackson Municipal Airport Auth., 419 So.2d at 1027. ¶ 11. Based on Mississippi College v. May, 235 Miss. 200, 222, 108 So.2d 703, 710 (1959), under mortmain, the heirs at law in the present case did have a vested remainder, subject to defeasance by MCF exe......
  • Mississippi State Highway Commission v. Daniels, No. 41119
    • United States
    • United States State Supreme Court of Mississippi
    • February 9, 1959
    ...have sustained the motion to exclude the testimony of this witness. But we do not mean to say that we would reverse for this error alone. [235 Miss. 200] After careful consideration of the cross-appellant's contentions, we are of the opinion that the case should be and is affirmed on Revers......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT