Rives v. Burrage

• Decision Date: 06 March 1916
• Docket Number: 17595
• Citation: 110 Miss. 789,70 So. 893
• Court: Mississippi Supreme Court
• Parties: RIVES ET AL. v. BURRAGE ET AL

70 So. 893

110 Miss. 789

RIVES ET AL. v. BURRAGE ET AL

No. 17595

Supreme Court of Mississippi

March 6, 1916

APPEAL from the chancery court of Copiah County. HON. P. Z. JONES Chancellor.

Bill by H. W. Rives executor and others against F. D. Burrage and others. From a decree for defendants on demurrer, plaintiffs appeal.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

W. H Rives, R, H, & J. H. Thompson and R. N. Miller, for appellants.

McNeil & Loeb, for appellees.

OPINION

COOK, P. J.

Appellants, the executor and surviving children of R. G. Rives, deceased, filed their bill in chancery in the chancery court of Copiah county, in 1913, for the purpose of securing possession of certain real and personal estate and chooses in action which they claimed under the will of R. G. Rives, which was duly probated in Noxubee county, the county in which he resided at the time of his death. Appellee, F. D. Burrage, claimed the property under a will executed by Mrs. Amanda Rives, widow of R. G. Rives, shortly before her death in Copiah county, and shortly thereafter offered for probate by F. D. Burrage, who was named as sole devisee and executor without bond. In their bill appellants set out the will of R. G. Rives, under which they claim, and their rights depend upon the construction of that will. Appellees entered demurrer to the bill, which was sustained by the chancellor, and leave was given for an appeal that the principles involved might be settled. On the part of appellants it is claimed that, under the will of R. G. Rives, his widow, Amanda, took a life estate, with a power of disposal during her life, with remainder to certain named children, to whom was devised whatever might remain of the property undisposed of at her death. The contention of appellees was that the power of disposal given by the will converted the life estate into a fee, with which the attempted devise in remainder was inconsistent, and that the latter should be disregarded. A further contention was that, if the will should be so construed as to have vested only a life estate in the widow, Amanda, she could, by changing the form of investment during her life, take the proceeds in fee, thereby converting the life into a fee simple subject to her disposal by will, to take effect after her death. The original will of R. G. Rives was executed on the 11th day of March, 1891, and contained the following provision with reference to his wife, Amanda F. Rives:

"I desire she should take, for her natural life, all of such property and effects as I may own at my death, whether exempt from execution under the law, or not, this to include not only all property of every kind, but all money, claims and chooses in action of every kind. I wish her to use and enjoy all of the same as her own for her natural life, knowing that she will permit and encourage any and all of my unmarried children to enjoy the homestead and other property and effects with her, she controlling same as the mother and they rendering her due respect and obedience as children; and knowing also she will pay out of my effects such other debts as I may owe as far as she can do so without reducing such effects to less than six thousand dollars in value; but a life policy taken out by me for her benefit is not to be considered as any part of my effects as far as my creditors are concerned. I will and desire that, at the death of my wife, all my property of every kind and all my effects of every kind shall go to my children in equal parts, share and share alike, the heirs of my deceased children to take his or her share."

Amanda F. Rives and the two sons of the testator, Henry W. and Joel E. Rives, were nominated executors, to qualify without bond or security, and they were empowered to sell any property of the estate, publicly or privately, for cash or on time as they might think best. By a codicil dated September 13, 1892, the son, J. E. Rives, was given all of the law books and all office furniture, on condition that he should finish up all cases and business in which he and the testator were engaged as partners at the time of the death of the testator, and account for and pay over to the executors the testator's part of the fees in the same manner and to the same extent that the testator would have been entitled if living. On the 1st day of August, 1894, shortly before the death of R. G. Rives, he executed another codicil containing the following provision:

"At my death I wish my wife, Amanda F. Rives, to hold and enjoy not for her life merely, but absolutely as her own property subject only to the provisions hereinafter stated, all of my property, real and personal, including all my homestead and other exempt property and all chooses in...