Gordon v. Perry , 98 Miss. 893 ( 1910 )

Mayes, C. J.,

delivered the opinion of the court.

A brief statement of the case is about as follows: Some time in 1900 D. A. James executed a will, leaving many legacies and devises to various persons. Later Mr. James died, and this controversy is as to whether or not the residuary devisees take a certain lot in Yazoo, City, or whether this lot goes to the heir as property undisposed of by the terms of the will. The facts in relation to this lot are about as follows: At the date of the death of Mr. James his will made provision for his wife and also his only child, and, after making many other specific legacies and devises to various other parties named in the will, by item fourteen he inserts this clause: “Any and all property owned by me at the time of my death, and not specifically disposed of above, I will and bequeath to Mary P. Gordon, W. S. Gordon, J'r., children of John Gordon, deceased, T. W. James, and Charles W. Weir, share and share alike.” The particular lot in question is lot 155, which by the will was specifically devised to the testator’s wife after the death of his mother, to whom he had given a life interest. Subsequently the wife renounced the will under section 5086 of the Code of 1906, and in the distribution of the estate made to her after the renunciation of the will, instead of getting this whole lot, she only got one-half of it, leaving the other half undisposed of by the will, because of the renunciation of the will, which had specifically given her the whole of same. The mother, to whom belonged a life interest in same, filed this bill, stating that she desired to surrender her life interest to the person entitled to same after her death, but did not know to whom to make the deed, since it was claimed by the'heir on the one hand, and the residuary devisees on the other. The chancellor decreed in favor. of the heir, and from that judgment this appeal is prosecuted.

We think the case is settled by the case of Morris v. Henderson, 37 Miss. 492, and also by the case of Barton v. King, 41 Miss. 288. In the first of the above cases the court expressly states the rule to be followed in this state, and says: “If the real estate ‘be specifically devised,. and the devise does not take effect, either from the incompetency of the devisee to take, from a partial revocation of the will, a lapse by the death of the devisee in the lifetime of the testator, or from the contingency not happening upon which, as a condition precedent, the devise was made, or was to take effect, it descends to the heir, as property undisposed of by the will,’ and does not go to the residuary devisee under the general residuary clause, James v. James, 4 Paige (N. Y.) 117. But if the real estate he not attempted to be disposed of specifically by the will, it will pass to the general residuary devisee, unless restricted by other clauses of the will; for, not being disposed of, nor attempted to be disposed of, it must be taken to have been intended to be embraced in the positive disposition of the residuary clause. 1 Jarman on Wills (1st Am, Ed.), 588-590. In such a case it would be doing violence to the express disposition of the will to say that, as to such real estate, the testator intended to die intestate.”

We have no hesitancy in reannouncing the above rule already declared by this court as the one to govern in this •state, and amply supported by authority from many states, as an examination of the authorities cited in section 2175, vol. 49, of the Century Digest will show.

Affirmed.