Beck v. Booth , 144 Miss. 493 ( 1926 )

Ethridge, J.,

delivered the opinion of the court.

This suit was filed for the purpose of construing a will executed by John J. Beck reading as follows:

“This is my will. I may not write it as the law requires, but I want it to be just as I write it in case T die. I want my wife, Lizzie A. Beck to be executor of my estate without bond. I also want Fred Grittman to be trustee to help her and advise her; in all business transactions, and it is my request of her that she take their advicev It is also my will that my estate in full be held intact. Just as it is until George Earnest my baby boy is twenty-one years old. And the proceeds of all rents and incomes be used to support my wife and children as long as they are single and at home and educate the children. In view of the fact that all of my life insurance is made payable to my wife, Lizzie A. Beck, I request of her that she collect it and pay ail my honest debts, when they are presented in proper form. It is' also< my will that in case of my wife’s death before George Earnest is twenty-one years old that. Fred Grittman be executor in her place to carry out this will. I do hereby set aside the one hundred sixty acres of land known as the old Watson place, southwest one-half of section 13, Township 23, Range 4, west. Also one-half acre west side in A lot, three in B, and residence to my wife to have and hold as her individual property her natural lifetime, and at her death, this property to return to my estate, and be a part of same, to be equally divided among my heirs who may be living at that time. This will is intended to cover all property, both person and real. In witness whereof, I now sign my name.

. “John Hi. Beck.”

At the time this will was executed, Beck thought he was going'; to die, but he recovered and lived for some time thereafter. At the time this will was executed, his property was perfectly free from incumbrances, but, subsequently, was incumbered by a deed of trust. This deed of trust was given for the purchase money,. and the holder thereof was unwilling to renew it, and efforts to refinance were unsuccessful because of doubt in regard to the title of the one hundred sixty acres of land and the residence lot devised to the widow for her lifetime. Since the death of Beck, the children mentioned had become of age, and some of them had executed a deed to all interest in said lands. All the other children of decedent have married and have children who are parties to the suit.

The case was tried upon the following’ agreement:

“It is agreed by and between solicitors for the complainants and defendants that said cause shall be tried on the original bill, the answer thereto and the following; statement of facts, the right being reserved by both sides to object to any and-all of said facts for competence, relevancy, etc.

“(1) John J. Beck was a man of less than the average school education. His will was written without legal advice of any kind, and was written on what he thought was his deathbed, his doctors having advised him that he had only a few days to live.

“(2) At the time he wrote the will, only two grandchildren had been born to him; namely, the first two defendants named in paragraph 1-e of the bill of complaint. The father of these two defendants was in comfortable financial circumstances at the time.

“(3) The respective ages of the children of John J. Beck and his wife, Lizzie A. Beck, at the time of the fil ing of this suit, are as follows': Alma Beck Dubard, thirty-six years; Johnnie Beck Durley, thirty-two years; C. A. Beck, thirty years; Myra Kate Beck Daniel, twenty-six years; George Earnest Beck, twenty-four years. Mrs. Lizzie A. Beck’s age is fifty-six years. The only unmarried child is George Earnest Beck.

“(4) The testator owed some money at the time he wrote the will, but was in comparatively easy circumstances. At the time of his death he owed large sums of money, and all of the farming lands1 described in the original bill are mortgaged. One loan for over twenty thousand dollars is secured by mortgage on six hundred forty acres of the land, including the one hundred sixty acres comprising a part of the life estate. This loan will mature in 1927, and the holder of the loan has refused to renew it in the present state of title to the land. Many efforts have been made to finance the property in anticipation of the maturity of this loan, but all to no avail. Mrs. Beck and the children wish to partite the property and each one do individual financing, but have been unable to give deeds to each other conveying an unquestionable title.

“ (5) It is further agreed that after the complainant, George Earnest Beck, became of age, he executed and delivered quitclaim deeds to all of [the complainants named in paragraph 1-a of the original bill of complaint, to each of said complainants a quitclaim deed to the lands respectively bought by them, as shown by said bill of complaint.

“(6) It is further agreed that the copy of the will of said John J. Beck, which is made an exhibit to the original bill of complaint, is a true and exact copy of said will, special reference being had hereby to grammar, punctuation, and paragraphing.”

The Chancellor held that the estate devised to the widow descended to the remaindermen, subject to the life estate, and became vested at the death of the testator, John J. Beck, and also held that the conveyance by the children was valid and conveyed their interest in the estate.

The provision for construction is the language used in the will, viz.:

“I do hereby set aside one hundred sixty acres of land known as the old Watson place, southwest one-fourth of section 13, Township 13, Range 4, also one-half acres west side of square A. Lot three in square B, and residence, to my wife, to have and hold, as her individual property her natural life, at her death this property to return to my estate, and be a part of same, to be equally divided among my' heirs, who may be living at that time. This will is intended to cover all property, both personal and real.”

Appellant contends that the remainder did not vest at the death of Beck, but would only become vested at the death of the widow and the termination of the life estate, and that the word “heirs,” used in this provision, is used in its technical sense; while appellee contends that the word “heirs” is used in the sense of children, and that all possible children were in existence, and that it was a vested remainder subject to be opened up to let in after-born remaindermen.

In our opinion, the language of the will makes it plain that the estate is to vest in his heirs at the death of the widow, at the termination of the life estate, and that the word “heirs” must be given its ordinary, legal meaning.

It will be noted from a reading of this provision that, at the death of the widow, this property “is to return to my estate and be a part of same, to be equally divided among my heirs who may be living at that time.” The remainder goes to the heirs who may be living at the termination of the life estate. The life estate is in the widow for the period of her natural life, and she is custodian of the legal title for the benefit of the heirs, to be determined "at the date of her death.

It may be that the children of Beck may die pending the life estate. In such case, their children, of course, would be heirs of the testator, taking’ the place of their parents. Under the will, they would be entitled to the remainder, and therefore the judgment of the Chancellor was erroneous.

It may be a hardship, as it frequently is a hardship, when by a will property is tied up and the estate is unable to finance obligations of debt against the property, but that cannot affect the results here. So long* as the law gives the right to make a will, as our law does, and one is made in accordance with the law, the court must give effect to the intention of the testator where it may lawfully be done, and to determine his intent it will be guided by the words used in the will where it is unambiguous.

The judgment of the court below therefore will be reversed, and the bill dismissed.

Reversed and bill dismissed.

On Suggestion oe Error.

"We erred in the former opinion, in reversing the entire decree of the chancery court dismissing the bill. The opinion therein rendered should have been and is now limited to the construction of the following provision of the will:

“I do hereby set aside the one hundred and sixty acres of land known as the old "Watson place southwest one-fourth of section 13, Township 23, Range 4 west, also one-half acre west side in A lot three in B and residence to my wife to have and hold as her individual property her natural lifetime, at her death, this property to return to my estate, and be a part of the same to be equally divided among; my heirs, who may be living at that time. ’ ’

The rest of the estate disposed of by the will became vested at the death of the testator, to be held intact until the youngest boy became twenty-one years old, and that not conveyed to the wife, on the attainment of twenty-one years by the youngest son, G-eorge Earnest Beck, was subject to conveyance and partition, and the decree of the chancery court with reference to this part of the will will be affirmed.

As to the part giving the widow a lifetime interest, the former opinion stands, as the remainder interest in said property so conveyed does not vest in the heirs until the death of the widow.

Suggestion of error is sustained in part.