Thomas v. Thomas

53 So. 630, 97 Miss. 697

Opinion

Willing,

Footnotes

•

* Special Judge,

delivered the opinion of the court.

The executor named in the last will and testament of Mrs. Mary E. Thomas filed a petition in the chancery court of Lee county for a construction of the will of the testatrix, and for instructions as to his duties as said executor.

Mrs. Thomas died in the city of Tupelo during the year 1905, and among her papers were found two documents, purporting to be her last will and testament. Both of said wills bore tbe date of February 22, 190L Both were holographic in character,, being wholly written by the testatrix. Both contained substantially the same provisions, and both were admitted to probate. At the time the will was made, Mrs. Thomas had three children, R. L. Thomas, J. M. Thomas, and E. G-. Thomas, all of whom were married. R. L. Thomas had two children, one of whom died before the testatrix. 'J. M. Thomas, at the time the will was .made, had one child, and at the death of the testatrix, he had four children. E. G-. Thomas died intestate before bis mother, leaving a widow and no issue. The sole heirs and legatees of the testatrix, at the time of her death, were her two children, the said R. L. Thomas and J. M. Thomas, and their children. Her estate, at the time of her death, consisted of personal property to the value of about $7,800, and a house and lot in the city of Tupelo, worth about $3,000.

The executor asked tbe court to construe tbe will on the following points: (1) Was the création of what is denominated in the will as the “Mary E. Thomas estate” valid, or does it violate the law against perpetuities ? (2) If the creation of the Mary E. Thomas estate he -valid, then- what amount should be set aside by tbe executor to constitute tbe Mary E. Thomas estate? (3) What does the word “grandchildren” in the will include, whether those living at the time the will was made, or those living at the time of the death of the decedent, or those living at the time of the testatrix’s own children’s death, and when did their estate vest ? (4) Should there be any residuary estate, to whom should it go under the will? (5) What are the powers and duties of the executor under the will, and what should be his compensation ?

E. L. Thomas and his child and the four children of the executor were made parties defendant to the petition. E. L. Thomas answered the petition, made his answer a cross-bill, and prayed that the will be declared void on account of its being violative of the law against perpetuities, and for a decree giving the whole of said estate of every kind and character to cross-petitioner and J. M. Thomas share and share alike, to take effect and be vested immediately. The cross-petitioner further insisted in said petition that, should the court hold the Mary E. Thomas estate to be a valid estate, only the sum of $8,500 should be set aside to constitute the said estate. The defendants to the cross-petition demurred thereto, and the ease was tried on the demurrer. The court sustained the demurrer, and dismissed the cross-petition, and construed the will contrary to the contentions of the said E. L. Thomas, who prosecutes this appeal.

The will provides that what is known as the “Mary E. Thomas estate” should not be less than $8,500, nor more than $10,000, and by its provisions the sons of Mrs. Thomas are the sole beneficiaries of this estate during their lives, and after the death of. the sons it is provided in the will that the estate is to go to her grandchildren, to be theirs when they reach the age of twenty-one years. The provisions of the will with regard to the disposition of the Mary E. Thomas estate, after the death of the sons of the testatrix, are contained in section 11 of the will, which is in the following language:

“I direct that after the death of my three sons, that the re maining principal and its income or interest, if there be any, of the said Mary E. Thomas estate is to go to my legitimate grandchildren, to be theirs as a bequest, at the death of all my children, and when they (my grandchildren) arrive at the age of (21) twenty-one years or more of age, it does not become theirs until this age, and all my own children dead, each set of grandchildren is to have their father’s pro rata part. If any of these grandchildren die before this age, or conditions, without brothers or sisters, what would have been their part goes to my surviving grandchildren wherever they may be when proper age and conditions are fulfilled, but any of these grandchildren can after the death of my children have the income from this said estate for educational purpose or even for a living, if their mother proves she has not a sufficiency for their maintenance, or education, but this fact must be proven.”

Section 12 of the will is in the following language:

“The intent and purpose of this my last will, is for the protection of a part of my estate for the benefit of my own children so long as they live, and then for my own flesh and blood after they are gone.”

It is earnestly contended on behalf of appellant that the creation of the Mary E. Thomas estate violates the common law and our statutes against perpetuities. It is claimed that sections 11 and 12 of the will, taken together, show that Mrs. Thomas intended to limit the Mary E. Thomas estate to her own flesh and blood indefinitely; that the word “grandchildren” includes great-grandchildren, and on down the line of her bodily heirs to the remotest time; and that therefore the will violates the common-law rule against perpetuities, and that K. L. Thomas and J. M. Thomas take a fee-simple title to the entire Mary E. Thomas estate. It is further contended that, even should the Mary E. Thomas estate be valid so far as concerns the personalty, it is invalid as to the realty, because it violates section 2765 of the Code of 1906, in that a life estate is devised to a succession of donees, exceeding two, and to several who might come into being after the will went into effect, whereas the statute provides that only two donees can take in succession, and that therefore an estate tail was created, which by the statute was converted into an estate in fee simple, and that the first takers, to wit, E. L. and J. M. Thomas, F. G. Thomas being dead, got a fee-simple title to all the real estate embraced in the Mary E. Thomas estate.

The chancellor held that the real estate was by the doctrine of equitable conversion changed from realty into personalty, and that, inasmuch as all the Mary E. Thomas estate consisted of personalty, the creation of the trust estate did not violate the law against perpetuities. In our view of this case, it is not necessary to decide whether or not, by the doctrine of equitable conversion, the realty was changed into personalty under the terms of the will. The creation of the Mary E. Thomas estate violates neither the common law nor the statute law. It makes no difference whether the estate consists of realty or personalty, or both. The limitation of the estate is valid, both as to realty and to personalty. It is admitted in the argument that the statute prohibiting estates in fee tail has no application to personalty, and that we must look to the common-law rule as to perpetuities so far as personalty is concerned.

It is insisted, however, by counsel for appellant, that an estate in fee tail was created by the testatrix, and that under the statute (section 2765 of the Code) prohibiting estates tail the estate in fee tail was converted into an estate in fee simple. The statute above referred to has no application to this case whatever. The limitation of the trust estate is by way of executory devise, and the testatrix did not create an estate tail in limiting the Mary E. Thomas estate. The statute aforesaid prohibited estates tail, and authorized a statutory substitute therefor, but left executory devises unaffected. See opinion of Judge Calhoon in Banking Co. v. Field, 84 Miss. 646, 37 South. 139. There may be a limitation by way of executory devise of realty as well as of personalty, and the common-law rule against perpetuities is the same, whether the estate limited consists of realty or personalty.

No estate, legal or equitable, vested in the sons of the testatrix under the provisions of the will. The will creates a trust estate, which is under the exclusive control and management of the executor, the net income from which is to be devided among the three sons, during their lives, and which estate on the death of the sons is to go to' the legitimate grandchildren of the testatrix, when they arrive at the age of twenty-one years. Under the terms of the will, in case of misfortune or sickness of any one or more of the sons, the entire income from the trust estate may be used for the relief of the one in distress, and in case any one of the sons or all of them should become involved in serious trouble, whereby they may be in jeopardy of life or liberty, the entire trust estate may, if necessary, be consumed in their defense. The sons took no estate under the will, which is vendible under execution. See Leigh v. Harrison, 69 Miss. 923, 11 South. 604, 18 L. R. A. 49. The entire Mary E. Thomas estate, when set aside, will be held by the executor in trust for the purposes declared in the will, and must be by him administered in accoi’dance with the provisions of the will.

Measured by the common-law rule, which is the only rule applicable to this case, the creation of the trust estate does not violate the law against perpetuities, and it is therefore valid. To constitute a valid executory devise at the common law the contingency upon which it is to take effect must occur within a life or lives in being and twenty-one years and ten months thereafter. See Caldwell v. Willis, 57 Miss. 555. It is true that in the case above referred to the bequest was of personalty; but, as stated by Judge Calhoon in tbe case of Banking Company v. Field, supra, the rule is the same as to realty. If, then, the fee in the Mary E. Thomas estate, whether it consists of' realty, or personalty, or both, must vest in some one absolutely and at all events within a life or lives in being at the death of the testatrix and twenty-one years and ten months thereafter,, it does not violate the common-law rule against perpetuities.

It is insisted by counsel for appellant that the Mary E. Thomas estate is void at the common law, because it is claimed that Mrs. Thomas used the word “grandchildren” in the sense-of great-grandchildren, and that she meant to limit the trust estate to her remotest posterity. They draw this deduction from the language of section 12 of the will, wherein the testatrix said that she wanted to protect her own children so long as they live, then to protect her “own flesh and blood” after they are gone. The word “children” is rarely held synonymous with “heirs,” or “bodily heirs,” and generally it does not embrace grandchildren. See Cannon v. Barry, 59 Miss. 287; Tate v. Townsend, 61 Miss. 316; Ward v. Cooper, 69 Miss. 789, 13 South. 827. In common parlance grandchildren mean the children of children, and not great-grandchildren, unless there is something in the context which requires the forced construction.

We agree with -the chancellor that there is nothing in the language of section 12 of the will which requires any such forced construction. When the testatrix wrote, “children,” she meant her sons, because she called them by name; and when she wrote the words “my legitimate grandchildren,” she evidently meant the children of her sons. Her grandchildren, the legitimate children of her sons, are her “own flesh and blood;” and when she made provisions for them in section 11 of the will,, she was protecting her “own flesh and blood.”

Her three sons were márried when the will was executed. Two of them had children then. The testatrix never contemp lated the contingency of all of her grandchildren dying before the last of her sons should die. She did not mean by the term “grandchildren” her remotest posterity. She meant the children of her three sons, F. G., R. L., and J. M. Thomas, who should be living at the death of the last of her sons, and who should attain the age of twenty-one years. This view is strengthened by the language of the will, “each set of grandchildren is to have what would have been their father’s part.” Mrs. Thomas had no daughters, and in making this provision she clearly had in mind her three living sons, and by the term “grandchildren” she meant the children of those sons, not great-grandchildren and her descendants to the remotest degree.

Then, again, the will provides that, if any of the grandchildren die without brothers or sisters before arriving at the age of twenty-one years, their part should go to the surviving grandchildren ; that is to say, to their cousins. This provision would indicate that the testatrix was not trying to entail the trust estate indefinitely, but that she was making provisions for the children of her three sons, and not for her remotest posterity.

Even had the testatrix intended that the word “grandchildren” should include great-grandchildren and her descendants to the remotest degree, we are of the opinion that the rule against the creation of perpetuities would not have been violated. No state of facts can be imagined in which, according to the terms of section 11 of the will, the limitation can be more than twenty-one years and ten months after the death of the last of the three sons; and, this being true, the limitation is valid. The fee must inevitably vest in some one under the terms of the will, after the termination of lives in being, to wit, the three sons, and within twenty-one years and ten months thereafter, no matter whether at the death of the last living son he be survived by grandchildren, great-grandchildren, or remoter descendants of the testatrix.

The chancellor erred in holding that at the death of the last surviving son, if there be grandchildren then living, a determinable fee vests in them, subject to be divested if they should not attain the age of twenty-one years. Under the express terms of the will, no estate will vest in the grandchildren who survive the sons until they attain that age. The will provides that “it does not become theirs until they attain this age, and all my own children dead.” The sons must all be dead, and each grandchild must attain the requisite age, before it takes any interest in the estate.

The chancellor correctly held that the grandchildren take per stripes, and that, in the case of the death of any of the grandchildren before attaining the requisite age, what would have been its share goes to its brothers and sisters, share and share alike, provided, always, they reach the age of twenty-one "years, and that, in the event that any one of them should die without brothers or sisters surviving them, its share goes to the other grandchildren, its cousins, and that, in ease all the grandchildren should die before any of them reach the age of twenty-one years, then the estate would descend according to the law of descent and distribution.

The chancellor held correctly that the share of F. Gr. Thomas in the residuary estate lapsed by his death before the death of the testatrix, and descended one-half to R. L. Thomas and one-half to J. M. Thomas, and that therefore the said R. L. Thomas acquired a one-fourth interest in the residuary estate, and J. M. Thomas acquired a three-fourths interest in said estate.

The chancellor also ruled correctly as to the compensation ■which shall be paid to the executor for administering the trust estate, and for carrying out the provisions of the will.

What amount of property shall be set aside to constitute the Mary E. Thomas estate, and who is to determine the amount? Section 3 of the will is as follows: “I direct that not more than $10,000.00 (ten thousand dollars) nor less than $8,500.00 (eight thousand five hundred dollars) of my estate be set aside, .and known as the Máry E. Thomas estate, and that all of its business be kept separate and apart for special purposes herein .stated and devised.” If the maximum amount be set aside, as decreed by the chancellor, the entire estate will.be consumed, as the estate, both real and personal, after the payment of debts, ■expenses, etc., will amount to less than $10,000.

It is contended by counsel for appellant that, inasmuch as the net estate is less than $10,000 the chancellor should have set .aside the minimum amount of $8,500. The will provides that not more than $10,000, nor less than $8,500, shall be set apart. It does not provide that the value of the estate shall be either the maximum or the minimum amount. It may be in value ■equal to either the maximum or the minimum amount, or it may be in value between those amounts. Looking at the “four corners of the will,” we think that the testatifix did not intend that her entire estate should be consuxned by the trust estate. She provided in the will that the trust estate must be set apart, and kept separate from the remainder of her estate, and her executor is to be paid for his services for changing investments out of the remainder of‘her estate, and in section 5 the testatrix devises the remainder of her estate to be divided equally between her sons, E. G-. Thomas and J. M. Thomas. The testatrix in ■section 12 expressly declares that her purpose in creating the trust estate was to protect a part of her estate for the benefit of her own children, etc.1 It is our opinion, therefore, that the testatrix intended that some substantial part of her estate should be reserved, and that she never intended that the Mary E. Thomas estate should consume all of her property,' provided, always, that the trust estate be not less in value than $8,500.

Who- is to determine what shall constitute the trust estate? It is evident, from the ample powers with which the testatrix invested J. M. Thomas as executor, and from the implicit confidence which she reposed in him, that she intended to leave to him the setting apart of that estate. Trusting to his 'honor in a great measure, the testatrix required of him no bond. She provided in her will that he is to continue as executor of her estate so long as he lives, and so long as he carries out her wishes to the best of his ability and knowledge. Under the power conferred upon him in the will, he can, if he sees fit and proper, sell under order of the court, any or all of the property of the estate. He must make reinvestments of the proceeds of the sales, place them on record, and make report of the same to the court, to an amount of not more than $10,000, and not less than $8,500.

We hold, therefore, that the duty of setting apart the Mary E. Thomas estate within the limits fixed by the will devolves upon J. M. Thomas, the executor. He cannot set aside the maximum amount, because that would consume the entire estate, contrary to the manifest wishes of the testatrix. He must not set aside less than the minimum amount. Within those limits he can exercise his sound discretion, provided he leaves some substantial amount for the residuary estate.

The decree is reversed and cause remanded, with directions to the chancellor to enter a decree in accordance with the principles herein announced.’

Reversad.

Anderson, J, having- been of counsel before his appointment to the bench recused himself and R. P. Willing, Esq., a member of the supreme court bar was appointed and presided in his place.