O'Reily v. McGuiggan

• Decision Date: 09 December 1907
• Docket Number: 12891
• Citation: 91 Miss. 498,44 So. 986
• Parties: MAGDELINE O'REILLY v. MISSOURI MCGUIGGAN ET AL
• Court: Mississippi Supreme Court

44 So. 986

91 Miss. 498

MAGDELINE O'REILLY v. MISSOURI MCGUIGGAN ET AL

No. 12891

Supreme Court of Mississippi

December 9, 1907

FROM the chancery court of Warren county, HON. J. S. HICKS Chancellor.

Mrs McGuiggan and her two children, appellees, were complainant in the court below, and Mrs. O'Reilly, the appellant defendant there. From a decree in favor of the complainants the defendant appealed to the supreme court.

Several years before his death one John R. M. O'Reilly, being sued by Mrs. McGuiggan for slander, compromised the case with her, agreeing to provide in his last will and testament for the payment at his death of $ 1,000 to her and $ 2,000 to each of her two children. In fulfilment of the compromise O'Reilly, who was at the time unmarried, added to his will the following codicil:

"Codicil 2. For a good and valuable consideration, not necessary to be named here, I give unto Missouri McGuiggan one thousand dollars, and to Mary and Ellen McGuiggan, her daughters, the sum of two thousand dollars each. The gifts are based upon a valuable consideration, and I therefore covenant and agree with said devisees that they shall be and remain irrevocable by me, it being my purpose, upon the execution of this instrument and the delivery of the same to my executors, that the said Missouri, Mary, and Ellen McGuiggan shall become vested with an interest in presenti in and to said sums, to be paid to them upon my death, and I hereby instruct my executors to pay said sums, respectively, to the said Missouri, Mary, and Ellen McGuiggan as soon after my death as possible, said sums to be absolutely paid by said executors and are not to be prorated with any bequests or legacies of my last will and testament, but are to be a charge upon my estate and to take precedence over any bequests which I have made or may hereafter make."

After the execution of this codicil O'Reilly married the present appellant, Magdeline O'Reilly, and subsequently died, and his will, with the codicil, was probated. No provision was made for testator's widow, save that, under her maiden name, Magdeline Ludke, she was bequeathed $ 5,000. Mrs. O'Reilly, the widow, within the statutory time renounced the will, and exercised her right under the statute, Code 1892, § 4496, to take a one-half interest in the estate of her childless husband, the same being largely in excess of the sum bequeathed her.

Thereafter this suit was begun to have the amounts named in the codicil adjudged to be a debt of the decedent's estate, and the executors of the will ordered to pay the full amounts to the complainants as provided by the codicil. Mrs. O'Reilly answered, claiming that the codicil did not create an indebtedness due by the estate, but instead it gave a legacy to each of the complainants. The answer further claimed that if a debt existed in favor of complainants under the codicil it originated in the lifetime of the testator, and had not been probated. The court found that the codicil created a trust and a debt against the estate, and not a legacy, and ordered the executors of the will to pay complainant the amounts due them thereunder. After the trial, but before the signing of the decree, the court below allowed the case to be reopened and permitted the complainants to probate their claims against the testator's estate.

Affirmed.

McKnight & McKnight, for appellant.

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