Anderson v. Anderson

112 So. 603, 147 Miss. 515, 1927 Miss. LEXIS 298

• Court: Mississippi Supreme Court
• Decided: April 25, 1927
• Docket: No. 26460.
• Status: Published

Opinion

Anderson, J.,

delivered the opinion of the.court.

The appellee, Mrs. E. M. Anderson, filed her bill in the chancery court of Marshall .county, against appellant, Mrs. Virginia L. Anderson, as executrix of the will of her husband, Joseph F. Anderson, deceased, and in her individual capacity, and also against Mrs. Hattie Cannon, in her individual capacity and as trustee for Mrs. Bessie Jackson, who has not appealed, to charge with and have sold, if necessary, for the purpose of appellee’s maintenance and support, the lands of the estate of appellee’s husband, Joseph F. Anderson, deceased. The cause was tried on bill, answer by appellant, and proofs resulting in a decree granting the prayer of appellee’s bill. From that decree, appellant prosecutes this appeal.

We think the evidence sufficient to support the allegations of the bill. Perhaps we could not make a better statement of the case, out of which the questions to be determined arise, than by setting out appellee’s bill. Leaving off the formal parts, including the affidavit and exhibits thereto, the bill follows:

“Your complainant, Mrs. E. M. Anderson, would most respectfully show unto this honorable court: That both she and the defendant are resident citizens of Marshall county, Miss. That on the 23d day of February, 1918, her husband, Joseph F. Anderson, departed this life at his fixed place of residence in Marshall county, Miss., having first made and published his last will and testament bearing date of August 2,1906; same being duly probated and made of record on the 28th day of February, 1918, and recorded in 'Will Book No. 1, at page 427 of the records of the chancery clerk’s office of Marshall county, Miss., a copy of same being hereunto attached and marked ‘Exhibit A’ hereto and asked to be taken as a part of this original bill.

“Said will specifically provides as follows, to-wit: ‘Item 2nd: After the payment of all my debts and funeral expenses as per item 1st of this will. I charge my entire estate with the burden of the expense of supporting my beloved wife during the term of her natural life; such support to be equal to that in all respects which she is now accustomed to receive, and such as may be necessary for her comfort in her declining years, etc. ’

“After the death of complainant’s husband, Joseph F. Anderson, said will was duly admitted for probate and letters testamentary were duly issued; and her son, Joe M. Anderson, was nominated and appointed executor of said will according to its terms, on the 28th day of February, 1918.

“On the 4th day of July, 1924, the said Joe M. Anderson departed this life at his fixed place of residence in Marshall county, Miss., having first executed his last will and testament, dated the 17th day of May, 1922, same having been duly made a matter of record on July 10, 1924, and recorded in Will Book No. 2, at page 40, of the records of the chancery clerk’s office of Marshall county, Miss..; a copy of said will being hereunto attached and marked ‘Exhibit B’ hereto, and asked to be considered as a part hereof as if fully copied at length herein.

“Mrs. Virginia L. Anderson, the defendant herein, by the terms of the said will, is the sole heir and beneficiary and executrix of the estate of the said Joe M. Anderson, and letters testamentary were duly issued unto her as executrix of said estate on the 10th day of July, 1924, as shown by cause No. 5082 of the chancery clerk’s office of said county and state.

“Complainant avers that, after the death of her husband, Joseph F. Anderson, their son, Joe M. Anderson, complied with the terms of the will of her husband and his father by furnishing her with the necessities of life and paying the expenses of her support out of the estate left by her husband, up until May, 1922. But complainant avers and alleges that since May, 1922, she has not been given anything nor furnished with the comforts and necessities of life by. the said Joe M. Anderson nor his legal representative, Mrs. Virginia L. Anderson, nor received any sums whatsoever for her board and clothing and other necessities out of the estate of her deceased husband, Joseph F. Anderson.

“Although Joe M. Anderson had full charge, control, and use of said estate and generally profited therefrom until the time of his death in July, 1924, for more than two years before his death your complainant was forced to seek aid elsewhere, and was given shelter, clothes, board, and other necessities by her daughter, Mrs. Bessie Jackson, with whom she is now living and has lived for quite awhile, and who has administered to her wants without any pay, from the estate of her deceased husband.

“Complainant charges and avers that, after the death of the said Joe M. Anderson, his wife, the defendant herein, Mrs. Virginia L. Anderson, continued to use, have, control, and profit from the estate of her husband, Joseph F. Anderson, but that, although she has often been requested, she has failed, refused, and still refuses to comply with the terms of the said will of Joseph F. Anderson, deceased, and has never paid her or given unto your complainant anything for her comfort and living expenses out of said estate or the proceeds therefrom, to which complainant is justly due and entitled.

“On the 5th day of January, 1925, your said complainant, Mrs. E. M. Anderson, duly probated and had allowed, as made and provided by law, her itemized claim amounting to six hundred ninety-five dollars against the estate of Joe M. Anderson, deceased, a copy of said itemized .probated claim being hereunto attached and marked ‘Exhibit C’ hereto, and asked to be taken and considered as a part herein as if fully copied at length herein; same being for board from May, 1922, to July, 1924, a period of twenty-six months, at the rate of twenty dollars per month, amounting to five hundred twenty dollars, and clothes necessary for complainant’s comfort and maintenance, which she failed to receive out of the assets of said estate since the death of her husband, estimated at twenty-five dollars per year for the years 1918, 1919, 1920,1921,1922,1923,1924, being a period of seven years and amounting to one hundred seventy-five dollars, making a total of six hundred ninety-five dollars.

“Your complainant was most reasonable in her demands, and only asked for just what amounts were absolutely necessary, but even that was refused to be paid her by defendant and she now avers that said estate and the defendant are justly indebted to her in an amount far in excess of this amount and as she has been forced to bring suit to recover that which is most justly due her she asks this Honorable Court to order an accounting if he deems necessary to ascertain what is reasonable and justly due unto her, and that a lien be declared against said estate in her favor for whatever sum she may be entitled to and a judgment rendered against said estate of Joe M. Anderson and the defendant, Mrs. Virginia L. Anderson, for such an amount that the accounting may show she is entitled to in a sum not less than six hundred ninety-five dollars and any further sums found to be justly due her and that said defendant, individually and as executrix of said estate be ordered to pay said sum at once, as your complainant is old and very feeble and regrets very much to have to resort to this, her last remedy, to obtain the relief to which she is most justly entitled.

“Premises considered, it is the prayer of the complainant, Mrs. E.. M. Anderson, that the defendant Mrs. Virginia L. Anderson, executrix and sole beneficiary and legatee of the estate of Joe M. Anderson, deceased, be made a party defendant to this bill of complainant-, by the proper process of this court, returnable at the regular October rules, 1925, of this court, and required to answer same, but not under oath, as answer under oath 'is hereby specially waived, and that at the hearing of this cause, if the court deems it necessary to order an accounting in this, behalf, to cause a master to be appointed to take and state an account between the parties hereto as in such cases made and provided by law, and that a decree of judgment be rendered in favor of complainant against defendant in the sum of not less than six hundred ninety-five dollars, with legal interest from due date until paid, and that a lien be declared and a charge decreed against the property on said estate in such an amount as is ascertained to be just, due, and owing unto said complainant by said defendant, and that all costs of this proceeding be taxed against the said defendant, or, if mistaken in the relief prayed for and if complainant is entitled to other relief, then it is the prayer of your complainant that this court grant unto her such other, further, different, extra, special, or general relief as she may be entitled to in the premises and as is in keeping with right and justice, as in duly bound she will ever pray,” etc.

The main question in the case is whether, under his will, Joseph F. Anderson, deceased, charged the lands, as well as the personal property and rents and profits of his estate, with the maintenance and support of appellee, his wife, during her lifetime. Leaving off the formal parts, the following is a copy of the will:

“Item 1st: I direct payment of just debts and funeral expenses be paid out of my estate.

“Item 2nd: After the payment of my debts and funeral expenses as per item 1st, of this will, I charge my entire estate with the burden of the expense of supporting’ and maintaining my beloved wife during the term of her natural life; such support to be equal to that in all respects which she is now accustomed to receive, and such as may be necessary for her comfort in her declining years, and I also charge my estate with the expenses of a decent Christian burial of my said wife at the time of her death.

“Item 3rd: The balance and residue of my estate of every kind, character and description and wheresoever situated, I give and bequeath and dispose of as follows; viz.:

“To my son, Joe M. Anderson, I give one-third of my estate in fee simple; to my daug’hter, Hattie Cannon, I give one-third of my estate in fee simple; and to my daughter, Bessie Jackson, I give and bequeath the remaining one-dhird of my estate for and during the term of her natural life with the remainder over to the living heirs of her body at the time of her death, of the descendants of such heirs then living, but should the said Bessie Jackson at the time of her death leave no heirs of her body living, or descendants of such heirs living at the time of her death, then the said estate hereby given and bequeathed to her shall revert to my estate.

“Item 4th: The title to the interest in my estate hereby given and bequeathed to the said Bessie Jackson in item 3rd of this will I do hereby vest in my son, Joe M. Anderson, as trustee, to be used and managed by him for the benefit of my said daughter, Bessie Jackson, as long as the said Bessie Jackson remains the wifé of her husband, J. B. Jackson, and should the said Joe M. Anderson die before the said Bessie Jackson dies, then the title to the interest vested in him as.trustee shall at once be vested in Hattie Cannon as trustee to be used and managed and controlled by her for the use and benefit of the said Bessie Jackson, in the same manner and to the same extent as is above provided for the management of said estate by the said Joe M. Anderson; I further direct that no bond shall ever be required, of either of said trustees for the proper management of said estate committed to their care.

“Item 5th: Should the said Bessie Jackson survive her said husband, J. B. Jackson, or be lawfully divorced from him, then I direct that the estate hereby given and bequeathed to her for life shall at once ripen into an estate of fee simple, and she shall be entitled to the possession of the same and be entitled to the full control and management of the same free from interference on the part of the trustees heretofore named, and may dispose of the same as she sees fit, and any conveyance of said property by the said Bessie Jackson upon the happening- of the events of this item of my will shall vest in the purchaser a fee-simple title to the property disposed of by her.

“Item 6th: I nominate and appoint my'son, Joe M. Anderson, executor of this my will and testament specially exempting- him from giving any bond or security as such and from making any inventory or appraisement of my estate, and from making and reporting or accounting thereof to or with any court whatever, requiring him to do no more than to carry out the provisions of this will and have the same filed and properly probated and recorded according to law. ’ ’

The evidence tended to show, and the chancellor found, that the rents, profits, and personal property of the estate of the testator were insufficient to properly maintain and support appellee, and decreed a sale of the real estate for that purpose. Appellant argues that, under the will, the lands of the estate could not be sold in order to raise funds for the necessary maintenance and support of appellee; that only the personal property and the rents and profits of the estate could be devoted to that purpose under the will; while appellee contends, that under the will if the rents and profits and personal prop erty of the estate were insufficient for the maintenance and support of appellee, as the chancellor found and the evidence tended to show, then the lands of the estate were chargeable with such support, .and should be sold for that purpose.

It will be noted that after payment of his debts and funeral expenses, the testator, in the second paragraph of his will, charged his entire estate with the burden of the expense of supporting and maintaining his wife during her natural life in the manner to which she had been accustomed during his lifetime. There seems to be little diversity among the authorities as to the meaning in a will of the phrase, “charge my entire estate.” The courts hold that, where a legacy is so charged upon an estate, that the legatee, if necessary to enforce the payment of the legacy, may resort to, and have a sale of the lands of the estate of the testator. This question is treated in 28 R. C. L. at pages 306, 307, sections 288 and 289, and authorities cited in the notes. Appellant does not controvert that general principle, but she argues that this particular will is not to be given that construction, because, taking the will as a whole, it is clear that the testator did not intend to devote his lands to the payment of appellee’s legacy, but to make it a charge alone upon the personal property, and rents and profits of his estate. Appellant bases this contention largely upon the fact that the will provides that after the death of appellee, the testator’s estate is to go to his children in fee simple; that, if all of the estate is to be consumed, in the support of his wife, clearly there would be no remainder estate to go in fee:

The remainder estate was disposed of in the third paragraph of the will, the first clause of which is in this language, “the balance and residue of my estate of every kind, character, and description, and wheresoever situated, I give and bequeath and dispose of as follows. ’ ’■ As we view the will, the contention of appellant is unsound. Taking the will as a whole, it is patent that the dominat ing’ thought in testator’s mind in the making of his will was to provide for the maintenance and support of his wife if she should survive him; that every other provision of the will was to be subordinate to that. Such a provision in a will, situated as the testator was with reference to his wife and children, was the natural and reasonable one to make. That clause of the will clearly shows that he thought there might not be left any part of his estate after the death of his wife, for he was careful to refer to it as “the balance and residue of my estate;” in other words, it is evident from the will that the testator had in mind that his wife, if she survived him, should be properly supported during her lifetime, even if it took all of his estate of every kind and character so to do.

The evidence tended to show that appellee moved in May, 1922, from the country, where she was living, to Holly Springs, for the purpose of being with her daughter, Mrs. Jackson, and that at the time this move was made she had an agreement with her stepson, Joseph M. Anderson, the executor of her husband’s will, that, if he would pay her ten dollars a month, she would release the estate from any further liability under her husband’s will. The evidence showed that thereafter the estate paid appellee ten dollars a month up to the time of the filing of the bill in this case. Appellant contends that this was a binding* contract between appellee and the estate of her husband, and she was thereby estopped from claiming* from the estate any sum above that amount. There was no consideration shown for the agreement, if such an agreement was made. The support and maintenance of appellee was a first charge upon the estate after the payment of debts. If she made an agreement to take less than was necessary for that purpose, it was not binding upon her. The executor, if he made such an agreement with appellee, gave to her no consideration therefor.

Appellant complains that the chancellor erred in rendering. a personal decree against her in favor of the ap pellee. As we construe the language of the decree, it is not a personal decree against the appellant for any sum whatever. By the decree, appellant is given the right to pay the amount charged against the lands of the estate, and thereby render the sale of the lands unnecessary; but, as we understand the decree, the charge against the lands is not made a personal liability on the part of the appellant. The decree provides no method to enforce collection of the amount from appellant. The evidence showed that the appellant was the sole heir, legatee, and devisee of her deceased husband, Joseph M. Anderson; and thereby she became the owner in fee of a one-third undivided interest in any remainder estate of the deceased, Joseph F. Anderson, and, having acquired the interest therein of Mrs. Cannon by purchase, she became the owner of a two-thirds undivided interest in such estate. Being so interested, the court, in its decree, thought to give appellant an opportunity, if she so desired, to pay the amount decreed and made a charge against the lands of the estate.

Appellee, in one paragraph of her bill filed in this cause, stated that the executor of her husband’s will had complied with the terms of the will by furnishing appellee with the necessities of life and paying the expenses of her support out of the estate of her husband until the month of May, 1922. Appellee was bound by that allegation of her bill. Notwithstanding, the court, in its decree, awarded her, as a charge against the lands of her late husband, twenty-five dollars a year for clothing for the years, 1918 to 1926, inclusive. Under the plain admission in appellee’s bill, she was not entitled to such an allowance for the years, 1918 to 1921, inclusive. Appellant contends that the decree is erroneous, at least, to that extent. As we view the case, we think the contention is well founded. It follows, therefore, that the sum of one hundred dollars, which is as near as can be approximated from the record, should be deducted from the amount awarded the appellee; in other words, that the decree was excessive to that extent.

' We see no other substantial errors in the case, and the decree of the chancellor will be modified to that extent and the cause remanded for further proceedings in accordance with this opinion.

Affirmed, with modification, and remanded.