Murdoch v. Murdoch

• Decision Date: 12 December 1910
• Docket Number: 14262
• Citation: 97 Miss. 690,53 So. 684
• Court: Mississippi Supreme Court
• Parties: JOHN MURDOCH ET AL. v. ANN MURDOCH

53 So. 684

97 Miss. 690

JOHN MURDOCH ET AL. v. ANN MURDOCH

No. 14262

Supreme Court of Mississippi

December 12, 1910

FROM the chancery court of Claiborne county, HON. JAMES STOWERS HICKS, Chancellor.

Mrs Ann Murdoch, appellee, was complainant in the court below John Murdoch and others, appellees, were defendants there. The complainant sued in her individual right and as well as executrix of the last will and testament of her deceased husband, W. B. Murdoch, and she sought by her suit a construction of the will. From a decree in her favor the defendants appealed to the supreme court. The facts are fully stated in the opinion of the court.

Reversed and remanded.

Catchings & Catchings, for appellants.

Counsel argued the case fully, citing the following authorities: Eaton v. Straw, 18 N.H. 331; 2 Wash. R. P. 320; Surman v. Surman, 5 Modd. Ch. 123; Burwell's Ex'rs v. Anderson, Adm., 3 Leigh (Va.) 348; Denson v. Mitchell, 26 Ala. 360; French v. Hatch, 28 N.H. 331; Weeks v. Weeks, 5 N.H. 326; Smith v. Bell, 6 Pet. 68, 8 L.Ed. 322; Cruise, Dig. tit. 38, c. 13, § 5; 1 Roper's Leg. 643; 1 Jarman, Wills (5th ed.) 873; 4 Kent, Comm. 520; Burleigh v. Clough, 52 N.H. 267, 13 Am. Rep. 23; Stuart v. Walker, 72 Me. 206; Chase v. Ladd, 153 Mass. 126, 26 N.E. 429, 25 Am. St. Rep. 614; Mansfield v. Shelton, 67 Conn. 390, 35 Atl, 271, 52 Am. St. Rep. 285; Lewis v. Palmer, 46 Conn. 454; Adams v. Lillibrige, 73 Conn. 655, 49 A. 21; Peckham v. Leggo, 57 Conn. 553, 19 A. 392, 7 L. R. A. 419, 14 Am. St. Rep. 130; Hull v. Holloway, 58 Conn. 218, 20 A. 445; Glover v. Stillson, 56 Conn. 316, 15 A. 752; Kent v. Morrison, 153 Mass. 137, 26 N.E. 427, L. R. A. 756, 25 Am. St. Rep. 616; Thompson v. Thompson, 107 Ala. 163, 18 So. 247; Brunson v. Martin, 152 Ind. 111, 118, 119, 52 N.E. 599, 601; Spooner v. Phillips, 62 Conn. 62, 24 A. 524; New Haven v. Sheffield Scientific School, 59 Conn. 163, 22 A. 156; Austin v. Hyndman, 119 Mich. 615, 78 N.W. 664; McCray v. Lipp, 35 Ind. 120; Cross v. Hock, 149 Mo. 325, 50 S.W. 786; Anderson v. Hensley, 8 Heisk. (Tenn.) 834; Lieneau v. Summerfield, 41 N. J. Eq. 381, 4 A. 660; Brockley's Appeal (Pa.) 4 A. 210; Mulvane v. Rude, 146, 45 N.E. 659; Taylor v. Bell, 158 Pa. 651, 28 A. 208, 38 Am. St. Rep. 857; Tuerk v. Schueler, 71 N.J.L. 331, 60 A. 357; Wiley v. Gregory, 135 Ind. 657, 35 N.E. 507; Jackson v. Robins, 16 Johns. (N. Y.) 537; Wooster v. Cooper, 53 N. J. Eq. 682, 33 A. 1050; Funk v. Eggleston, 92 Ill. 515, 34 Am. Rep. 136; Welsh, Adm'r, v. Woodbury, Adm'r, 114 Mass. 542, 11 N.E. 762; In re Foster's Will, 76 Iowa 364, 41 N.W. 43; Greve v. Camery, 69 Iowa 220, 28 N.W. 564; Melton v. Camp, 121 Ga. 693, 49 S.E. 690; Brant v. Va. C. & I. Co., 93 U.S. 327, 23 L.Ed. 927; Giles v. Little, 104 U.S. 291, 26 L.Ed. 745; Roberts v. Lewis, 153 U.S. 367, 14 S.Ct. 945, 38 L.Ed. 747; Redman v. Barger, 118 Mo. 568, 24 S.W. 177; Kimbrough v. Smith, 128 Ga. 690, 58 S.E. 23; Tuthill v. Davis, 121 App.Div. 290, 105 N. Y. Supp. 672; Underwood v. Cove, 176 Mo. 1, 75 S.W. 451; Semper v. Coates, 93 Minn. 76, 100 N.W. 662; Fiske v. Fiske's Heirs, 26 R. I. 509, 59 A. 740; McGuire v. Gallager, 99 Me. 334, 59 A. 445; Steiff v. Seibert, 128 Iowa 746, 105 N.W. 328, 6 L. R. A. (N. S.) 1186; Welsh v. Gist, 101 Md. 606, 61 A. 665; Grace v. Perry, 197 Mo. 550, 95 S.W. 875; Worden v. Perry, 197 Mo. 569, 95 S.W. 880; Adams v. Massey, 184 N.Y. 62, 76 N.E. 916; Wallace v. Bozarth, 223 Ill. 339, 79 N.E. 57; Broach v. Kitchens, 23 Ga. 515; Shreve v. Shreve, 43 Md. 382; Bradshaw v. Butler (Ky.), 110 S.W. 421; McCormick v. McCormick (Ky.), 121 S.W. 450; Vannerson v. Culbertson, 10 Smedes & M. 150; Rail v. Dotson, 14 Smedes & M. 182; Anderson v. Brumfield, 32 Miss. 111; Dean v. Nunnally, 36 Miss. 358; Edwards v. Gibbs, 39 Miss. 167; Tatum v. McLellan, 50 Miss. 5; Robertson v. Hardy's Adm'r (Va.), 23 S.E. 766; Pillow v. Rye, 31 Tenn. 186; Downing v. Johnson, 45 Tenn. 230; McGavock v. Pugsley, 59 Tenn. 690; Emert v. Blair (Tenn.), 118 S.W. 685; Terry v. Wiggins, 47 N.Y. 512; Sneer v. Stutz, 93 Iowa 62, 61 N.W. 399; Clarke v. Boorman's Ex'rs, 18 Wall. 493, 21 L.Ed. 904; Baker v. Richardson (Miss.), 50 South 447; Page on Wills, 672, 825.

Tim E. Cooper, for appellee.

Counsel argued the case fully, citing the following authorities: Wells v. Doane, 3 Gray, 201; Bolman v. Lohman, 79 Ala. 63; Weathers v. Patterson, 30 Ala. 404; Flinn v. Davis, 18 Ala. 132; Barford v. Street, 16 Vesey, 135; Irwin v. Farrer, 19 Vesey, 86; Daniel v. Dudley, 1 Phil. Eng. Chan. 1; Holloway Clarkson, 2 Hare, 621; Page v. Soper, 21 Eng. L. and Eq. 499; Ide v. Ide, 5 Mass. 500; Morris v. Phaler, 1 Watts, 389; King v. King, 12 Ohio, 390, 474; Sheets v. Wetsel, 39 Ill.App. 600; Perry v. Merritt, 1 L. R. Eq. Cas 152; Ross v. Ross, 1 Jack. & W. 154; Hale v. Marsh, 100 Mass. 468; Stevens v. Winship, 1 Pick. 318; Larner v. Bridge, 17 Pick. 339; Harris v. Knapp, 21 Pick. 412; Gleason v. Fayerwether, 4 Gray, 348; Brant v. Gelston, 2 John. Ch. Cas. 384; Ramsdell v. Ramsdell, 21 Me. 288; Adams v. Massey, 184 N.Y. 62; Roseboom v. Roseboom 81 N.Y. 356; Van Nostrand v. Moon, 52 N.Y. 12, 20; Trustees v. Kellogg, 16 N.Y. 83, 88; Banzer v. Banzer, 156 N.Y. 429; Goodwin v. Coddington, 154 N.Y. 283; Watson v. Blackwood, 50 Miss. 15; 2 Jarman on Wills, 314; 1 Underhill on Wills §§ 356-370.

OPINION

MAYES, C. J.

W. B. Murdoch died leaving the following will, viz.:

"This is my last will and testament.

"1st. I leave to my wife Annie A. Murdoch, the entire use and management of all my property, both real and personal during her life. At her death it all goes to my living brother and sisters, or their heirs.

"2d. No inventory of my estate is to be taken.

"3d. My wife has perfect right to sell any of it as may be for the best.

"I ask that my friend James M. Gillespie, of Tensas parish, La., and my cousin John W. Bristol, of New Haven, Connecticut, act as coexecutors with my wife and befriend and aid her in her business, they give no bond, nor is it necessary for them in her business, they give no bond, nor is it necessary for them to qualify as executors in any court, simply by furnishing a certified copy of this will, the signature of either of them with the signature of my wife, is all that is necessary to sell or transfer any of the property, as they may deem best.

"5th. No account is to be kept of the disposition or management of my property, my wife to have full use, and manage it the best she can, with the advice of the two coexecutors and at her death what is left goes to my brother and sisters of their heirs.

"6th. I leave with this a letter to certain friends and relatives asking them to befriend my wife the balance of her life."

The will was duly probated, but James M. Gillespie died without having qualified as executor, and John W. Bristol refused to act. The only one named as executor who did act was Mrs. Murdoch filed a bill in the chancery court of Claiborne county, seeking a construction of the will. All proper parties were made defendants, and no question arises as to this. Mrs. Murdoch alleges in the bill that by reason of misfortune her personal estate has become so involved that the income is devoted to the payment of her debts, and that she therefore desires to exercise the right given her by the will, and sell certain stocks, bonds, and real estate belonging to the estate, for the purpose of using the proceeds thereof as her own. She further alleges that the defendants deny her right to do this, and claim that by the will they are entitled, after the death of complainant, to the real and personal estate, and that she has no right to sell any of it, and that on account of this assertion of the claim by them a cloud, doubt, or suspicion is cast upon her estate, and prevents her from making a sale thereof. She further alleges that the will of her husband provides that she may convert the estate, real and personal, to her own use and benefit, but that the claims asserted by defendants preclude her from doing this. The bill also claims that, under the terms of the doing this. The bill also claims that, under the terms of the will, the complainant is the owner in fee of all the estate, real and personal, and that the claim of the defendants to any interest in the estate should be annulled, and they should be prohibited from asserting same. the bill further prays for an order authorizing and permitting her to sell any of the property, free from any claim, right, or title on the part of nay of the defendants.

The defendants answered, denying all the material allegations, and denying the right of the complainant to convert the estate, real or personal, for her own use and benefit. The defendants assert that the only estate which the complaint has in an estate fro life, without power of disposing of the corpus for her own use, and that she has no right to sell any of the property free from claim, right, or title on the part of the defendants. The cause was heard on bill and answer, and the decree of the chancellor declared Mrs. Annie A. Murdoch to be the owner in fee of all the estate of her deceased husband, wherever situated, and further declared that she had full and unlimited power of disposition of the estate; that she might sell at public or private sale, and make conveyance and assignment thereof to the purchaser, or purchasers, free of any claim on the part of the defendants, From this judgment an appeal is prosecuted.

Counsel for appellee confesses that the decree is wrong so far as it applies to the real estate involved, and should be reversed. In the light of the will, we are unable to see why the decree is not wrong as to the whole of the property, both real and personal. That Mr. Murdoch intended that the remainder of his estate, both real and personal, if there should be any after...