Clark v. Clark , 126 Miss. 455 ( 1921 )

Sykes, P. J.,

delivered the opinion of the court.

By this suit we are called upon to construe certain items of the will of the late Paul Clark. Prom the construction placed thereon by the chancellor Mrs. Valerie W. Clark, widow of the decedent, prosecutes this appeal.

This will was executed on the 17th day of April, 1905. At that time Paul Clark and his wife, Valerie Walker Clark, had two living children, Charles and Virginia. Subsequent to the making of the will and before the death of Paul Clark two more children were born to them by name Valerie and Sam. No other will was made, and no changes by codicil after the birth of these two children.

Item I of this will is as follows:

“I desire that all of my just debts shall be paid, provided they are probated and registered and allowed in the man-' ner and within the time required by the laws of the state of Mississippi.” s

Item II bequeathes to his wife, Valerie Walker, all personal effects, consisting of books, clothing, jewelry, buggy, harness, and all other personal chattels of like kind. It also states that the testator has already given her a home in Clarksdale, Miss., and she is further bequeathed in this item all the household furniture therein, and all other belongings pertaining thereto.

Item III appoints three trustees, and vests in them the title to all property of the decedent, both real and personal, not bequeathed to his wife under item II, to be held in trust by them for the use of his two living children, subject to the terms and charges of the will.

Item IV reads as follows:

“I have now two children living, and I will that my said wife Valerie Walker shall have one-third of the net incomes from the separate estates of my children during her lifetime only, but the said income to be paid to my wife, as aforesaid, shall not vest in her any interest in my estate, but she shall have a share only from a portion of the income thereof as aforesaid, which said portion of such income is hereby fixed as a charge on the respective aforesaid shares or portions of each of my said children in my said estate.”

Item V contains a direction to the trustees relating to the maintenance/ support,' and education of each ■ of the children, and directing them to invest and reinvest the surplus of the incomes of the children for the benefit of the children. It concludes as follows:

“But it is expressly provided that the said charge of one-third of the incomes of the estates of each of my said children, fixed therein in behalf of my said wife, shall be charged only on the corpus of the estate of the said children as left to them at mv death, and the same shall not be charged on any accumulation by investment or reinvestment or surplus apportioned and apportionable to either or both of my said children by the said trustees or their successors.”

Item VI contains further directions to the trustees, and is not necessary to be herein set out.

Items YII and VIII are as follows:

“Item YII. The said trustees shall have the right at any time, in their entire election and discretion to inventory and appraise the said estate hereby devised to my said children, and, keeping one-third thereof as of the date of my death in trust, to set apart and apportion to either or both of my children who may reach the age of twenty-one years, such reasonable portion of said estate as may belong to him or her, as they may determine, and thereafter the said trustees shall retain the residue and devote the income thereof to my wife, to the extent of one-third of the income of the entire estate so devised to each of said child or children as hereinbefore directed, and the residue of said income to the child to whom no advances may have been made in the proportion hereinbefore provided for, taking into account always the extent and amount of any such advance that may so be made to any of either of my said children, subject to the right of the trustees in their discretion to care for either in excess of the income accruing’ to' him or her, as aforesaid.”

“Item VIII. The said trustees shall have the right, and I hereby expressly confer the authority upon them, at any timej at their discretion, to set aside such part or portion of the said estate hereby devised to my said children as shall, in their opinion, be' sufficient to produce the amount of income provided for my wife, as hereinbefore provided for, ont of the said portion and estates _of my said children. And, if the said trustees shall exercise the said powers herein conferred upon them, they shall thereafter hold the said portion, to set apart in trust, as hereinbefore provided for, and pay over to my said wife during her lifetime the income thereof. And the said trustees shall take the residue of the said estate and may distribute the same to my said children as each of them shall attain the age of twenty-five years; and the said one-third part or portion of my estate which may be so set apart, as aforesaid, after the death of my said wife, shall be dealt with as the rest of my estate and be equally owned between my said children after they attain the age of twenty-five years.”

It is unnecessary to set out the other items of the will. Suffice it to say that elaborate provisions are made also for the appointment of guardians for the children, and these guardians are invested with power to invest and reinvest whatever moneys of the minors come into their possession not necessary to be used by them.

At the time oí his death Mr. Clarke’s estate consisted principally, if not entirely, of shares of stock in the Ash-ton Land Company, a land holding corporation of Clarksclale, Coahoma county, Miss. He owed approximately fifty thousand dollars at the time of his death. ■

The first question presented for decision is, what portion of the estate the two after-born children, Valerie and Sam, inherit under section 5080, Code of 1906 (section 3368, Hemingway’s Code), and, second, whether or not each of their shares is subject to be charged with any portion of the income left the widow, Mrs. Clark.

Section 5080, supra, expressly provides that: Where a decedent leaves children born after the making and publishing of his will, “the child or children so after born. . . . and neither provided for nor disinherited, . . . shall succeed to the same portion of the father’s or mother’s estate as such child or children would have been entitled to if the father or 'mother had died intestate, towards raising which portion the devisees and legatees shall contribute proportionably out of the parts devised and bequeathed to them by the same will and testament in the same manner as is provided in the case of posthumous children.”

Under this and the preceding section these children inherit the same portion of their father’s estate that they would have inherited had he died intestate. He left a widow and fopr children, therefore each of these after-born children under these statutes inherits an undivided one-fifth interest in their father’s property, and this they inherit in fee simple, free from all legacies of every character left in the will. As is stated in the opinion in the case of Watkins v. Watkins, 88 Miss. 148, 40 So. 1001, these children become “vested with an absolute title.” They inherit by virtue of the law and do not take under the will, and any attempted charge upon their part of the estate by virtue of the will is inoperative, because they took in fee simple, freed from all charges or provisions of the will relating to legacies, devisees, or bequests.

Item I of the will provides for the payment of all of the debts of the testator, and these debts should of course be paid out of the assets of the estate before these after-born children or the other children and the widow receive their portion of the estate. In other words, the debts should be first paid.

Under the terms of the will the remaining three-fifths of the corpus of the estate goes in equal portions' to Charles and Virginia, Charles receiving a three-tenths interest and Virginia a three-tenths interest. Their portions, however, are chargeable each with a one-third annual net income in favor of their mother, Mrs. Valerie Walker Clark. In other words, Mrs. Valerie Walker Clark gets one-third of the net income of the estate of Virginia and a like proportion from the estate of Charles. It will be noted from an examination of the will that the testator was very careful in providing for the income of his wife to provide that she should receive one-third of the net income of each child, and in no place in the will does he say that she shall receive one-third of the net income from the entire estate, but in every instance he specifically provides that she shall receive one-third of the income from each of these two living children.

It is ably contended by counsel for the appellant, Mrs. Clark, that she occupies a more favorable position than the other beneficiaries in the will, because she has relinquished a very valuable right, viz. that of^ renouncing the will under our statute, and that so far as her income is concerned she should be' treated as a purchaser for valuable consideration, and should receive one-third of the income from the estate left by her husband, and that no part of this legacy should abate or proportionately contribute to the shares of the after-born children. In this state dower and curtesy were long ago abolished, and the rules of law thereto appertaining have no application to the construction of our present statutes. Under our statutes now a widow is made an heir of her husband, and in case he dies intestate she inherits from Mm a child’s portion.

Under sections 5086 and 5087, Code of 1906 (sections 3374 and 3375, Hemingway’s Code), when a husband makes an unsatisfactory provision for his wife in his will, or fails to provide for her, she is permitted, in the first instance, to renounce the will and take a child’s part of the estate under the law, or, in the second instance, without renouncing the will, she can. elect to take her share of this estate as an heir of the husband. These sections are modified by section 5089, Code of 1906 (section 3377, Hemingway’s Code), which deals with the share a wife may take under the law where she has a separate estate.

When a widow fails to renounce where provision is made for her,, and elects to take under the will, she takes, however, just as any other beneficiary, and in this case her legacy abates proportionately with that of the two children provided for in the will in making up the portions of the after-born children.

The will was so construed by the chancellor in the lower court, and his decree is therefore affirmed, and the cause remanded.

Affirmed and remanded.