Thrasher v. Humphreys

70 So. 900, 110 Miss. 735

Opinion

Potter, J.,

delivered the opinion of the court.

Judge Steven Thrasher, a business man and lawyer, was a resident of Claiborne county during his life and died testate, and involved in this controversy is the proper construction of his will on one point. The fifth clause of Mr. Thrasher’s will is as follows:

“If I should have more than three thousand dollars in'money on hand at the time of my death, then I give oue thousand dollars to Mrs. Bettie B. Humphreys, wife of B. E. Humphreys, and one thousand dollars to R. E. Lee Hamilton, my stepson. Otherwise I give all money to my beloved wife, Martha J. Thrasher.”

■ After having made specific bequests, he disposes of the residue of his property in the sixth clause of the will, by which he provides that:

“All other property of whatsoever kind or description, I will and bequeath to my beloved wife, Martha J. Thrasher. ’ ’

When the testator died he had on deposit in the Port Gibson Bank subject to check the sum of one thousand seven hundred and thirty-one dollars and forty-two cents, and on deposit with the Delta Trust & Bank Company, at Vicksburg the additional sum of six hundred and forty-seven dollars and seventy cents, in all two thousand three hundred and seventy-nine dollars and twelve cents, the aggregate being less than three thousand dollars. He had also a promissory note payable on demand, dated July 28, 1913, for five thousand dollars bearing six per cent, per annum interest from date, and signed by the Port Gibson Oil Works. This note was given by the Port Gibson Oil Works, in which Mr. Thrasher was a stockholder, for dividends on his stock. This note was mailed to Mr. Thrasher at Red Lick, Miss., and the letter, transmitting the note to him, written by the Oil Mill Company, is as follows:

“You will note that we have made the paper payable on demand, but, of course, this with the understanding that we are to use the funds until the close of the season as per our agreement today.”

The only question for us to determine is whether or not the note above mentioned was to be counted as money on hand in construing the will and to thereby determine whether or not the decedent had on hand more than three thousand dollars in money at the time of his death, and to therefore determine whether or not Mrs. Humphreys and Mr. Hamilton are entitled to the legacies of one thousand dollars each, as it was a condition precedent to their right to take these legacies that the decedent should have “more than three thousand dollars in money on hand” at the time lie died. On a petition filed in the chancery court of Claiborne county by the executrix, praying for a construction of this will, the court decreed that the note for five thousand dollars was to be counted as money on hand, and decreed that the executrix should pay the two legatees the sums bequeathed to them -respectively. From this decree the executrix appeals.

Unless there is something in the context of the will that would indicate another and different meaning, the phrase “money on hand” means what it ordinarily does, cash money in one’s possession or on deposit in a bank subject to check, or bank notes used as a circulating medium of exchange. But the will itself in this case clearly indicates that Judge Thrasher used the phrase “money on hand” in its ordinary acceptation, meaning thereby the actual money that he should have on deposit at the time of his death, or money in bank subject to his check. If he had intended to treat the five thousand dollar note as cash on hand, it would have been unnecessary for him to have provided in his will that these legatees would take one thousand dollars each, provided he had more than three thousand dollars on hand. He would have simply left them a cash legacy of one thous- and dollars each. In his will he provided that if he should have more than three thousand dollars in money on hand at the time of his death, then Mrs. Humphreys and Mr. Hamilton should have one thousand dollars each, and the balance of his money was, of course, disposed of by the general residue clause in his will. It was therefore the evident intention of the testator to be certain that his wife would be amply provided with cash money at the time of his death, and he so constructed his will that, in all events, she would have one thousand dollars in money if he had that much' on hand at the time of his death. In other words, it was the testator’s intention to leave his wife at all events one thousand dollars or more in cash money, probably realizing how difficult it is at times to obtain ready money even on good security, and the necessity of actual cash to a widow who is just beginning to look after business matters on her own account. We, therefore, hold that in construing Mr. Thrasher’s will the demand note for five thousand dollars should not be counted as money on hand, and, the decedent having died without having “more, than three thousand dollars in money on hand,” that Mrs. Martha J. Thrasher is entitled to such cash money., and the legacies to Mrs. Humphreys and Mr. Hamilton fail.

Reversed and remanded.