Hailey v. McLaurin's Estate , 112 Miss. 705 ( 1916 )

HoldeN, J.,

delivered the opinion of the court.

The deceased, Dr. J. W. MeLaurin, bequeathed twenty-five thousand dollars to the Mississippi State Charity Hospital, using the following language in the will:

“To the Jackson Bank, a corporation authorized by its charter and laws of the state of Mississippi to execute trusts as trustee, I devise and bequeath at my death all of the property, real or personal or mixed which I may own at the time of my ‘death for the following purposes, to wit: . . .

“The said trustee or its successor in trust shall, out of the proceeds of my personal property, and out of the proceeds from the sale of my real estate, not situated in the state of Mississippi, create a fund of twenty-five thousand dollars, which fund of twenty-five thous- and dollars the said Jackson Bank or its successor in trust shall pay over and deliver to the trustees of the Mississippi State Charity Hospital, Jackson, Mississippi, and the receipt of the said trustees to the said Jackson Bank shall be a full .and complete acquittance to it of said sum. The said trustees of the Mississippi State Charity Hospital, Jackson, Mississippi, shall reinvest said funds and income therefrom until the principal thereof shall equal the sum of fifty thousand dollars, which fund of fifty thousand dollars shall be used by said trustees as follows, to wit. ... ”

The appellant contends: First, that the bequest to the hospital is a specific bequest, and failed because the proceeds from the personal property and the proceeds from the sale of the real estate in Tennessee amounted to only about twenty-two thousand five hundred dollars; second, that the bequest is invalid under sections 269 and 270 of our state Constitution.

It plainly appears from the language of the will that the bequest was not intended by the testator to be a specific legacy, but that it is a “demonstrative legacy,” to be paid out of the . general assets of the estate of the decedent, if necessary, and is not adeemed because of the partial failure of the particular fund from which it is to e'ome. The intent of the testator must control and determine the character of the legacy; and we find no difficulty in coming to the above conclusion from a careful consideration of the whole will. Underhill on Wills, vol. 1, sections .406, 407; Page on Wills, section 770; 40 Cyc. 1869, 1870-1874; Croom v. Whitfield, 45 N. C. 143; Jarman on Wills, vol. 2, p. 1063; Pomeroy on Equity Jurisprudence, vol. 3, section 1133; Malone v. Mooring, 40 Miss. 247; Fisk v. McNiel, 1 How. 535; Minor v. Stewart, 2 How. 912; Vaiden v. Hawkins, 59 Miss. 406; Chrisman v. Bryant, 108 Miss. 311, 66 So. 779.

Hnder chapter 115, Laws of 1910, the board of trustees of the Mississippi State Charity Hospital are authorized to receive bequests of property, when not contrary to the state Constitution.

The bequest here was of personal property to the board of trustees of a state charitable institution and was not a bequest to a religious or ecclesiastical corporation or association, as prohibited by section 270 of our Constitution, as it appears that the real estate in Tennessee had been converted into personal property before the death of the testator; but, regardless of this fact, the laws of Tennessee, where the land is situated, which govern here, do not prohibit such devises of land, or money raised by the sale thereof, to charitable institutions as are condemned by our Constitution (Section 269). We here set out the material parts of the two sections referred to:

“Sec. 269. Every devise or bequest of lands, tenements, or hereditaments, ... or of any money directed to be raised by the sale thereof, contained in any last will and testament, or codicil, or other testamentary writing, in favor of any religious or ecclesiastical corporation, . . . or to any person or body politic, in trust, either, express or implied, secret or resulting, either for the use and benefit of such religious corporation, society, denomination, or association, or for the purpose of being given or appropriated to charitable uses or purposes, shall be null and void, and the heir at law shall take the same property so devised or bequeathed, as though no testamentary disposition had been made.

“Sec. 270. Every legacy, gift or bequest of money or personal property, or of any interest, benefit, or use therein, either direct, implied, or otherwise, contained in any last will and testament or codicil, in favor of any religions or ecclesiastical corporation, sole or aggregate, or any religions or ecclesiastical society, or to any religions denomination or association, either for its own nse or benefit, or for the purpose of being given or appropriated to charitable uses, shall be null and void, and the distributees shall take the same as though no such testamentary disposition had been made. ’ ’.

Therefore we do not hesitate to hold that our Statutes of Mortmain, section 5090 and 5091, Code of 1906, which are the same as sections 269 and 270 of our Constitution, are not in the way of the validity of the beneficent bequest here made by the deceased, Dr. J. W. McLaurin, to the Mississippi State Charity Hospital, to be used there for the benefit of suffering humanity.

The bequest in question.is valid in all respects, and the decree of the chancellor in the lower court is correct and proper in every regard,, and is affirmed.

Affirmed.