Stewart v. Robinson

• Decision Date: 05 May 1902
• Citation: 31 So. 903,80 Miss. 290
• Court: Mississippi Supreme Court
• Parties: MACK STUART, EXECUTOR, ET AL. v. ELIZABETH STUART ROBINSON

31 So. 903

80 Miss. 290

MACK STUART, EXECUTOR, ET AL. v. ELIZABETH STUART ROBINSON

Supreme Court of Mississippi

May 5, 1902

FROM the chancery court of Lincoln county. HON. HENRY C. CONN Chancellor.

Mrs Robinson, appellee, was the complainant in the court below Stuart, executor, and others, appellants, were defendants there. The suit was instituted by Mrs. Robinson, a legatee under the will, to subject lands to the payment of a legacy.

The late Miss Mary Emily Stuart, an aged maiden, who, in her lifetime lived and who died at Brookhaven, while on her deathbed made a last will and testament in these words:

"State of Mississippi, Lincoln county. I, Mary Emily Stuart, of Lincoln county, Mississippi, of sound and disposing mind and memory, make this my last will. I will, devise, and bequeath all of my estate and property as follows: To my cousin, Mrs Elizabeth Stuart Robinson, of Washington, D.C., daughter of my uncle, James Stuart, ($ 500) five hundred dollars in loving remembrance. To my niece, Mrs. Martha Stuart Cochran of Waco, Texas, a tract of Robinson county, Texas, land, known as a part of the P. S. McNeill tract, consisting of eight hundred and forty acres.

"There are relics here belonging to the Cope family, which I will describe and trust to Mrs. Gussie Stuart to hand over to Mrs. Cochran. There is a small silver spoon, one hundred years old, which came out of my grandfather Stuart's family, which is all I have of that table silver. There is one pin cushion, mounted in silver, dated 1784, formerly owned by Jennie Wilkins White, my grandmother; also one black Lama shawl, lama lace, which belonged to Mrs. Criswell, which is to be given to Mrs. Cochran. I have a book written by college students, "Addresses and Lectures to the Young," which I gave to Mrs. Cochran. Should there be any thing specially among the heirlooms that Mrs. Kate Cooney Abbott would specially like to have, I want her to have it.

"To my dear and beloved friend, Mrs. Mary Jane Grafton, widow of James Grafton, of Lincoln county, Mississippi, I leave to her the place known as the 'Abells place,' situated near Montgomery, in Lincoln county, Mississippi, in loving remembrance. I hereby appoint Mack Stuart, of Beauregard, Mississippi, my beloved cousin, as executor of my estate without bond.

"To my beloved cousin, George Robert Smart, my entire property situated in the town of Brookhaven, Lincoln county, Mississippi. In the event of his death the property is to be given to my beloved cousin, Jennie Vee Stuart. In case both should die, the property is to belong to Mack Stuart or his heirs. To Mrs. W. S. Bowen I leave my iron bedstead and the furniture in the room. To Mrs. East, wife of the Reverend Mr. East, who so kindly nursed me, I leave my piano. To Mrs. R. C. Boone, my beloved friend, I leave the amount of fifty dollars to be paid at the convenience of the executor.

"I also request my executor to settle bills of Thomas Perkins, amounting to fourteen dollars and some cents; also my drug bill at Grafton's Drug Store; also Doctor Johnson's bill for services rendered me in professional capacity.

"The said executor, Mack Stuart, shall at my death proceed to wind up the affairs of the estate as the will directs. [Fifty dollars to Mrs. East instead of the piano, and piano to Ida Keenan.]

"In witness whereof, I have signed, published, and declared this instrument as my will, at Brookhaven, Lincoln county, Mississippi, this the 3d day of May, A.D., 1899.

"MARY EMILY STUART.

"Witnesses: Mrs. Belle Larkin, Mrs. Jane Keenan."

Miss Stuart, the testatrix, died on May 5, 1899, two days after the execution of the will, and the will was duly proved and admitted to probate, and the executor named qualified as such.

The bill in this case avers that at the time the testatrix executed the will, and at the time of her death, she had no money or personal property save the trifling articles mentioned in the will, which were entirely of inadequate value to satisfy the pecuniary legacies made by the will; that the testatrix knew when she made the will, and when she died, that the legacies could not be paid save by charging them on the land, because, as she well knew, there was no other source from which they could be paid; that it was the intention of the testatrix to charge the lands devised by her with the payment of the legacies, and that the lands were valuable, the Brookhaven lots alone being worth several thousand dollars. The defendants, now appellants, demurred to the bill, their demurrer was overruled, and they appealed to the supreme court.

Affirmed.

A. C. McNair and McWillie & Thompson, for appellants.

Is complainant's legacy charged on the real estate? We think not. This question must be determined from the will itself. There is no ambiguity in its terms; the doctrine contended for by appellee that the court must construe the will in the light of the testatrix's surroundings has no application; that doctrine applies only when there is some doubt as to the meaning of the terms of the will. This is announced in the case of Gilliam v. Chancellor, 43 Miss. 437, so much relied upon by appellee. The will itself in this case must control, and the averments of the bill which are in conflict with it count for naught.

We have therefore a case in which a money legacy is given to the complainant; specific real estate is given to the devisees, defendants. It turns out that there is no money, and no source from which it can be derived. It cannot be said with any more force, for instance, that the Abells' place, devised to Mrs. Grafton, is to be subjected to Mrs. Robinson's money legacy, than it could be said, had the testatrix not owned the Abells' place, or if there had been no such place, but had been $ 500 in money on hand at the death of the testatrix, that the default in Mrs. Grafton's devise should be made good by encroachment upon Mrs. Robinson's legacy. The thing is as long as it is broad. In order to make a money legacy a charge on real estate, specifically devised, it must appear from the will, either by express direction to that effect or by clear implication from the instrument taken as a whole, that the testator so intended. The court will not find any better discussion of this question than the opinion cf Chancellor Kent in Lupton v. Lupton, 2 Johns. Ch., 512. See the case with notes. 1 N. Y. Ch. Rep. (L. ed.), 614. See, also, Knotts v. Bailey, 54 Miss. 235.

The will in this case does not blend the real and personal estate as one fund in the residuary clause or otherwise. None of the devises of land are on condition that the legacies are to be paid, and there is no residuary legatee or devisee. The direction in the last clause of the will that the executor should "proceed to wind up the affairs of the estate as the will directs," does not aid Mrs. Robinson. It would have been his duty to have done so...