Norfleet v. Callicott , 90 Miss. 221 ( 1907 )

Whitfield, C. J.,

delivered the opinion of the court.

We have given this case the most careful consideration, and we think the learned chancellor below decided every point in it correctly. His decree is in the following words, so far as it relates to the points decided; the chancellor holding:

First: “That the proper interpretation and construction of the will of J. C. Callicott, deceased, is to the effect that said deceased by said will devised to his widow, the said Mrs. Kate B. Callicott, absolutely, the homestead and personal property as mentioned in his said will, and further devised her in trust the income from $15,000 during the term of her natural life or widowhood, and that at her death or marriage the same should go to his minor children, Lamar, Norfleet, and J. C. Callicott, as stated in said will, and that he made no other dis position of any other property owned hy him in his said will, except the legacy of $16,000, which he therein bequeathed to his daughter, Minnie Boone, and that, his said widow having renounced said will, its only effect is to devise said $15,000 to his said three minor children; said legacy for $16,000 having been adeemed as hereinafter mentioned, and said homestead reverting to and becoming a part of his general estate.”

Second. “It further appears to the satisfaction of the court that the evidence introduced establishes conclusively the fact that said testator, J. C. Callicott, in his lifetime adeemed the legacy of $16,000 bequeathed to his daughter, the said Minnie Boone, in said will, by paying to B. B. Lawler, for her, said sum of $16,000 on the purchase of a plantation in Bolivar county, Miss., which it is shown by the evidence was purchased and a deed to same being taken in the name of her and her husband, to be by them conveyed to their children then living and to any other children which might be thereafter horn to her, and that in so paying said money he did so with the knowledge and consent of the said Mrs. Minnie Boone, for the purpose of adeeming said legacy and extinguishing same; and it is therefore hereby decreed that said legacy of $16,000, as devised to said Mrs. Minnie Boone in said will, was adeemed by said testator in his lifetime, and forever satisfied and discharged, and the executors of said will, who are complainants herein, are directed not to pay said legacy, but to disregard it in the further distribution of said estate.”

Third. “It further appears to the satisfaction of the court from evidence in this case that said testator in his lifetime paid to each of his three children by a former marriage, to-wit, Calloway Callicott, Henry M. Callicott, and Minnie Boone, the sum of $30,000 each in full settlement and extinguishment of all their right to and claim against him as heirs to his said estate, and to all further interest in and demands against his estate, and as distributees of same after his death, and that the different receipts introduced as evidence herein by the executors were in the nature of a contract between said' testator in his lifetime and said three children to this fact, and were so accepted by them, and have been so acted on by him, and for that reason he failed to make any residuary clause in his said will, and died intestate as to all his estate except that above mentioned, which he specifically devised therein, and that by so paying said money to said three children and taking their receipts for same, evidencing same, he extinguished all their right or claim against his estate as heirs thereto, and that they and each of them are forever estopped from setting up or claiming any further rights in his estate as heirs of same or as distributees thereof, and that they, the said Mrs. Minnie Boone, and defendant Mrs. Flavia Callicott and C. G. Callicott, the widow and only child of Calloway Callicottj deceased, Mrs. Jessie Townsend, Mrs. Lillian House, and Macon and Arthur Carver Callicott, former widow and only children of Henry M. Callicott, deceased, are not to be regarded or counted in the distribution of said estate as heirs of J. C. Callicott, deceased, or distributees of his estate, and that they, nor either of them, do take any interest whatever in the estate of said testator now in the hands of said executors to be distributed. All of which is decreed, and said executors are directed not to distribute anything from said estate to either of said defendants, the said Minnie Boone, Mrs. Flavia Callicott, O. G. Callicott, Mrs. Lillian House, Mrs. Jessie Townsend, Arthur Carver Callicott, and Macon Callicott.”

Fourth. “It is further ordered and decreed that defendant Mrs. Kate B. Callicott, the widow of said testator, is entiled to, and her interest in all the estate which the said testator died seised and possessed of be, and the same is hereby, fixed and decreed to be, an undivided one-fourth part thereof after the payment out of said estate of the costs and expenses herein and hereafter mentioned, and that, after this one-fourth interest of said defendant Kate B. Callicott is paid to her, then that there shall be set apart from the remaining three-fourths of the assets of said estate the sum of $15,000, which shall be paid over by said executors under the will to the guardian of said three minor children of the testator, to-wit, Lamar, Norfleet, and J. C. Callicott, same to be held by said guardian for said three minor children under the terms of said will, and that after the payment of said $15,000 the remainder of said undivided three-fourths interest in all of the assets of said estate is hereby decreed to go to said three minor defendants, Lamar, Norfleet, and J. C. Callicott, share and share alike. This will disposes of all the assets belonging to the estate of said testator and now in the hands of said executors, and the interest in said assets of the said Kate B. Callicott, and of her three minor children, Lamar, Norfleet, and J. C. Callicott, in the same case, is hereby fixed accordingly, and said executors are authorized and directed by the court to distribute the same -to them accordingly in making final settlement of said estate, taking their proper receipts for same, paying over the interest of said three minors to their guardian.”

Section 4496 of the Annotated Code of 1892 and section 1545 of the same code must be construed together. The word “child” in section 1545 means such child as shall have a right under the law to share in estate left by his intestate father. It can never, in a case like this, include children who have been portioned off, and who have contracted with their father by written releases that they have no further interest in his estate.

In the foregoing decree all the points here brought into contest are presented, and correctly decided. Wherefore the decree is affirmed.