Slaughter v. Gaines, 39093

• Citation: 71 So.2d 760,220 Miss. 755,49 A.L.R.2d 1355
• Decision Date: 19 April 1954
• Docket Number: No. 39093,39093
• Parties: , 49 A.L.R.2d 1355 SLAUGHTER v. GAINES et al.
• Court: Mississippi Supreme Court

Page 760

71 So.2d 760

220 Miss. 755, 49 A.L.R.2d 1355

SLAUGHTER v. GAINES et al.

No. 39093.

Supreme Court of Mississippi.

April 19, 1954.

James T. Bridges, Belzoni, for appellant.

E. M. Yerger, Clarksdale, Sildney T. Roebuck, Newton, for appellees.

KYLE, Justice.

C. H. Gaines died on January 5, 1953. His last will and testament, dated October 29, 1952, was duly admitted to probate by a decree of the Chancery Court of Coahoma County on January 8, 1953, and Charles Louis Gaines and Roy Chapman thereupon qualified as executors of the will.

In his will the testator devised and bequeathed his property as follows:

'Know All Men By These Presents, That I, C. H. Gaines, of Coahoma County, Mississippi, being of sound and disposing mind and memory and over and above the age of twenty-one years do hereby make, publish and declare this as my last will and testament, hereby revoking any and all wills and testaments whensoever or wheresoever made.

'Item I: It is my desire that all my just debts be paid as soon after my death as possible.

'Item II: I hereby name and appoint Roy Chapman of Rena Lara, Mississippi, and Charles Louis Gaines of Newton, Mississippi, as joint executors of this my last will and testament and request that they not be required to give any bond as such nor make any accounting to any court.

'Item III: With the exception of my brother G. E. Gaines, I hereby will, devise and bequeath all the property of every kind, character and description, both real and personal, of which I may die seize and possessed to my heirs at law according to the laws of descent and distribution of the State of Mississippi. I have specifically excluded my brother G. E. Gaines from this devise and bequeath because he has been well provided for and not because of any disfavor or ill will.

'In Testimony Whereof, I have signed, sealed, published and declared this as my last will and testament in the presence of Jay Gore, Jr. and E. Cage Brewer, Jr. whom I have requested to become attesting witnesses hereto, on this the 29 day of October, 1952.

'Witness:

'/s/ C. H. Gaines

C. H. Gaines

/s/ Jay Gore, Jr.

/s/ E. Cage Brewer, Jr.'

C. H. Gaines was never married. Neither his father nor his mother was living at the time of his death. He left surviving him one half brother, G. E. Gaines, and one half sister, Mrs. Emma G. Slaughter, the appellant herein; also one full brother, Walter J. Gaines, and one full sister, Mrs. Lillie G. Pierce, and one full brother, William Gaines, who is now deceased. William Gaines left surviving him at the time of his death a widow and three children. C. H. Gaines, the testator, had one other full brother, Andrew Gaines, who had died in 1927. Andrew Gaines left surviving him his wife and five children, all of whom were living at the time of the death of the testator.

On February 5, 1953, the executors filed a petition in the chancery court asking that the court construe the will of C. H. Gaines, deceased, and determine who were the heirs-at-law of the testator entitled to share in the distribution of the estate under the terms of the will. All of the above named kindred were made parties defendant to the petition.

The petition was heard before the chancellor in vacation on February 21, 1953. The only witness who testified during the hearing was the attorney who had prepared the will for the testator and who had attested the same as one of the subscribing witnesses. The witness testified that during the conference he had with the testator before the will was prepared the testator mentioned each of his brothers and sisters by name; that he mentioned G. E. Gaines as his brother; and that he mentioned Mrs. Slaughter as his sister; that he never referred to either of them as his half brother or half sister. He stated that the testator instructed him to exclude G. E. Gaines specially. 'And he gave as a reason for it that he wanted his other brothers and sisters to share, and that he thought that G. E. Gaines was well enough fixed to take care of himself.'

In answer to a question propounded to him by the court, the witness stated that he knew nothing about the testator having a half sister and a half brother--'he never mentioned that to me.'

The chancellor held that under the terms of the will and the statutes of descent and distribution only the brothers and sister of the whole blood and the children of the testator's deceased brother, Andrew Gaines, were entitled to share in the estate; that the half brother, G. E. Gaines, was excluded under the expressed terms of the will, and that the half sister, Mrs. Emma G. Slaughter, was excluded under the laws of descent and distribution, which control in the case under the terms of the will. The chancellor ordered that the estate, after the payment of the cost of administration, be divided into four equal parts, and that one part be allotted to Walter G. Gaines, and that one part be allotted to Mrs. Lillie G. Pierce, and that one part be allotted to and be divided among the surviving children and the granddaughter of William Gaines, deceased, and that the remaining part be allotted to and be divided among the five children of Andrew Gaines, deceased.

From that decree Mrs. Emma G. Slaughter has prosecuted this appeal.

The only question presented for our decision is whether or not Mrs. Emma G. Slaughter, the half sister of the testator, was entitled to share in the estate under the terms of the will.

The appellant does not contend that she would have been entitled to inherit as an heir-at-law of C. H. Gaines, deceased, if C. H. Gaines had died intestate. The apellant does not contend that she would have been entitled to share in the estate under the terms of the will if no mention had been made of G. E. Gaines, who was referred to in the will as the testator's brother. The appellant's claim to a share in the estate under the terms of the will is based upon the language used by the testator, in Item III of the will, wherein he devised and bequeathed his property of every kind to his heirs-at-law, with the exception of his brother G. E. Gaines, who was already well provided for. The appellant's claim rests entirely upon the doctrine of gift by implication.

The principle relied upon to support the appellant's claim is stated in 57 Am.Jur. p. 840, Wills, par. 1271, as follows:

'If a testator, in describing a group or class whom he wishes to remember in his will, expressly excludes from membership therein a designated person who, as a matter of fact, would not come within the meaning of the words used to denominate the class, the question arises whether an intention is shown that the class should be considered as embracing other persons who come within the actual status or position of the person excluded. The authorities appear to support the conclusion that the fact that a testator has made such an exception, while some indication of a supposition that other persons of a description similar to the one expressly excluded should be included in the class, is not necessarily conclusive.'

The doctrine of gift by implication was fully considered by this Court in the case of Ball v. Phelan, 94 Miss. 293, 49 So. 956, 959, 23 L.R.A.,N.S., 895. In that case the Court quoted with approval a statement of Vice Chancellor Van Vleet in Bishop v. McClelland's Ex'rs., 44 N.J.Eq. 450, 16 A. 1, 2, 3, 1 L.R.A. 551, as follows:

'A bequest may undoubtedly arise from implication, but, to warrant the court in so declaring, there must be something more than conjecture to support its declaration. The implication must be a necessary one. The probability of an intention to make the gift must appear to be so strong that an intention contrary to that which is imputed to the testator cannot be supposed to have existed in his mind. A construction in favor of a gift by implication should never be adopted, except in cases where, after a careful and full consideration of the whole will, the mind of the judge is convinced that the testator intended to make the gift.'

The general rule relating to bequests or devises by implication is stated in 57 Am.Jur., p. 782, Wills, par. 1192, as follows:

'A bequest or devise may be made by mere implication, unless the implication violates public policy or some established rule of law, but to raise such implication it must be necessary to do so in order to carry out a manifest and plain intent of the testator which would fail unless the implication is allowed. Gifts by implication are not favored, and cannot rest upon conjecture. Such a gift will not be inferred from mere silence, but must be founded on expressions in the will, and is only admitted as a means of carrying out what the testator appears on the whole to have really meant, but failed somehow to express as distinctly as he should have done.'

In the case of Bell v. Dukes, 158 Miss. 563, 130 So. 734, the Court said that in order for a devise to arise by implication, the probability of an intention to make the devise must appear to be so strong that an intention contrary to that which is imputed to the testator cannot be supposed to have existed in his mind. The implication must be a necessary one. A construction in favor of the devise by implication should never be adopted except in cases where, after a careful and full consideration of the whole will, the mind of the judge is convinced that the testator intended to make the devise.

But having in mind these rules of caution, the Court must not lose sight of the fact that the fundamental rule governing the construction of all wills is to ascertain what the intent of the...