Welch v. Welch

• Decision Date: 30 May 1927
• Docket Number: 26514
• Citation: 147 Miss. 728,113 So. 197
• Court: Mississippi Supreme Court
• Parties: WELCH et al. v. WELCH. [*]

113 So. 197

147 Miss. 728

WELCH et al. v. WELCH. ^[*]

No. 26514

Supreme Court of Mississippi

May 30, 1927

Division B

1. WILLS. In case identical thing bequeathed is not in existence, or has been disposed of, legacy is "extinguished" or "adeemed."

In case identical thing bequeathed is not in existence, or has been disposed of so that it does not form part of the testator's estate, at the time of his death, the legacy is "extinguished" or "adeemed," and the legatee's rights are gone.

2 WILLS. Parol testimony is admissible as to character of property owned by testator, though will may be unambiguous on its face.

Though a will may be unambiguous on its face, parol testimony is admissible as to character of property owned by testator both at time of execution of will and at time of death, in order to properly apply terms of will to estate of which he died seized and possessed.

3 WILLS. Widow held not entitled to Lincoln automobile, under will bequeathing Packard automobile which had been exchanged for Lincoln.

Under will bequeathing to testator's widow, among other things a Packard automobile, widow was not entitled to Lincoln automobile of which testator died possessed and for which he had exchanged Packard automobile owned at time of execution of will, since it was not unreasonable to presume that, if testator intended wife to have Lincoln automobile instead of Packard, he would have changed his will to that effect.

4. WILLS. Courts cannot make will for testator by parol testimony. Courts cannot, by parol testimony, make a will which testator did not make.

Suggestion of Error Overruled June 13, 1927.

APPEAL from chancery court of Warren county.

HON.J.L. WILLIAMS, Chancellor.

Suit between W. C. Welch and another and Maud T. Welch, executrix, involving a construction of the last will and testament of C. Welch, deceased. Decree for the latter, and the former appeal. Reversed and judgment rendered.

Reversed.

Wm. I. McKay, for appellants.

Does the Lincoln car go to the widow, under the specific bequest to her of "my Packard automobile" in the second item of the will; or was the specific bequest "to my wife" of "my Packard automobile" adeemed by his disposal thereof prior to his death, so that the Lincoln car, owned at the time of his death, goes to the residuary legatees under the fourth item of the will? Our position is that the Lincoln car goes under the will and the law to the residuary legatees thereof, the appellants.

In the absence of any decision of this court, precisely in point, we refer to these authorities; 40 Cyc., p. 1919; 28 R. C. L. 341; 3 A. L. R., pp. 1497 et seq., 40 L. R. A. (N. S.) 542 and note; 11 L. R. A. (N. S.) 63 and note. Wells v. Wells, 25 Miss. 638, throws no light on the question at bar.

In Macrae v. Lowrey, 80 Miss. 52, the principle of ademption is again recognized by this court. But neither of these cases is precisely in point. The Lincoln car, under all of the authorities, passed, under the will, to the residuary legatees.

"In case of a sale or other extinction of the subject-matter of the legacy or devise, many courts have presumed an intention that the legacy should fail." 40 L. R. A. (N. S.) 549 and note.

Only the legislature, not the courts, can change this well-settled rule of the common law, as has been done by statute in three states. In determining whether a specific legacy has been adeemed, the intention to adeem will not be considered beyond the expression in the will itself and alone. Ford v. Ford, 23 N.H. 212; Georgia Infirmary v. Jones, 37 F. 750 (appeal dismissed in 37 L.Ed. 966); Harrison v. Jackson, L. R. 7, Ch. Div. 339, 47 L. J. Ch. (N. S.) 142; Rogers v. Rogers, 67 S.C. 168, 45 S.E. 176.

Ademption is not a question of intention, but a universal conclusion of law from the simple fact of the nonexistence of the thing specifically bequeathed. Humphreys v. Humphreys, 2 Cox. Ch. 184; Badrick v. Stevens, 3 Bro. C. C. 431; Hosea v. Skinner, 67 N.Y.S. 527; Beck v. McGillis, 9 Barb. (N. Y.) 35; Snowden v. Banks, 9 Ired. L. (31 N. Car.) 373; Blackstone v. Blackstone, 3 Watts (Pa.) 335; Ross v. Carpenter, 9 B. Mon. (Ky.) 367.

Malone v. Mooring, 40 Miss. 247, recognizes the ademption of a specific legacy by the disposal of the thing specifically bequeathed prior to the death of the testator. See, also, Lang v. Vaughn, 137 Ga. 671, 74 S.E. 270; Gardner v. McNeal, 82 A. 988; May v. Sherrard, 115 Va. 617; Macdonald v. Irvine, 47 L. J. Ch. (N. S.) 494; Harrison v. Jackson, 47 L. J. Ch. (N. S.) 142; Tipton v. Tipton, 1 Coldw. (Tenn.) 252; Tolman v. Tolman, 85 Me. 317; Updike v. Thompkins, 100 Ill. 406.

The decree of the lower court should be reversed.

Brunini & Hirsch, for appellee.

In presenting the law, appellants have absolutely ignored the fact that there are exceptions made by the courts to the general rule and different courts have taken different views as to those exceptions. What Mr. Welch, the deceased, intended to do was to give his wife his automobile. He didn't have any other. It was the right and natural thing for him to do. He thought so, because he gave it to her. If he had had more than one car, then it would have been necessary for him to have used some term or description to identify it. In this case had he used "my automobile," instead of "my Packard automobile," appellants would be without an argument. Waldo v. Hayes, 89 N.Y.S. 69, is almost on all fours with the case at bar. Schouler on Wills (3 Ed.), sec. 486. The same rule is declared and adopted in Van Vechten v. Van Vechten, 8 Paige, 104; Tifft v. Porter, 8 N.Y. 516, 521; 40 Cyc. 1426; 40 Cyc. 1046.

In quoting from Ruling Case Law (Brief, page 3), the appellants stop short of this sentence which immediately follows the quotation: "According to some decisions, however, slight or immaterial changes in the form of the property bequeathed will not work an ademption." In support of this last sentence, the note in 8 American & English Cases, 145 is cited. 40 L. R. A. (N. S.) 551 and note, citing Wells v. Wells, 35 Miss. 638.

In the case at bar take the surrounding circumstances and the expressions of the testator, and no doubt can be entertained of the fact that Mr. Welch, the deceased, intended that his wife should have his automobile. An interesting case is Kirsher v. Todd, 162 N.W. 129, 133.

The following are additional cases supporting our contention: In re Pierce, 54 A. 588, 25 R. L. 34; Marcy v. Graham (Va.), 128 S.E. 550; Spinney v. Eaton, 87 A. 378, 111 Me. 1; Fidelity Title & Trust Co. v. Young et al., 125 A. 871; Hansbrough's Ex'rs v. Hooe (Va.), 37 Am. Dec. 69, 668; Donald v. Hall, 130 Am. State Rep. 621, 651.

Argued orally by Wm. I. McKay, for appellant, and John Brunini, for appellee.

OPINION

ANDERSON, J.

There is involved in this cause the construction and application of paragraphs two and four of the last will and testament of C. Welch, deceased. His widow, Maud T. Welch, the appellee, claimed, under the second paragraph of the will, a Lincoln automobile of which her husband died seized and possessed. The court below rendered a decree sustaining appellee's contention. From that decree appellants prosecute this appeal.

The two paragraphs of the will in question (second and fourth) are in this language:

"2d. I hereby give and bequeath to my wife, Maud Trickle Welch, twenty-five thousand dollars ($ 25,000) in cash, my Packard automobile, and all my household goods, furniture and jewelry.

"4th. I hereby give, bequeath and devise to my sister, Miss Jessie A. Welch of Vicksburg, Mississippi, and my brother, Wade C. Welch of Vicksburg, Mississippi, share and share alike all of the residue of my estate, both real and personal, and should either one of the two last-named beneficiaries die before I do then the residue of my estate, real and personal, shall be given to the surviving one."

At the time of the execution of the will the testator owned a Packard automobile. There is nothing in the evidence to show whether or not at that time he owned an automobile of any other make. At the time of his death the testator owned a Lincoln automobile. The evidence does not show whether or not he owned another automobile at that time, except the inventory of his personal estate in the record shows a truck belonging to the estate. The evidence shows that prior to his death in December, 1925, the testator exchanged the Packard automobile, which he owned at the time of the execution of the will, for a Lincoln automobile of which he died seized and possessed.

Appellants' position is that the exchange by the testator of his Packard automobile, owned by him at the time of the execution of his will, for the Lincoln automobile, of which he died seized and possessed, had the effect of working an ademption of the bequest to appellee, his widow, Maud T. Welch, in the second paragraph of his will, of the Packard automobile; that under the law the Lincoln automobile did not take the place of the Packard automobile, and, therefore, went to the appellants, the testator's brother and sister, under the fourth paragraph of the will, by which the testator disposed of his residuary estate. On the other hand, appellee undertakes to maintain the converse of that position, and the court below so held.

The doctrine of ademption of specific legacies, we think, is correctly and dearly stated in 28 R. C. L., section 341, at pages 345-347, as follows:

"The distinctive characteristic of a specific legacy is its liability to ademption. If the identical thing bequeathed is not in existence, or has been disposed of so that it does not form a part of the testator's estate, at the time of his death, the legacy is extinguished or adeemed, and the legatee's rights are gone. The rule is universal...