Woessner v. Smith

Holden, J.,

delivered the opinion of the court.

The suit seeks a construction of the last will of J'. Obergfell, deceased, and to charge all of his estate with the payment of certain legacies amounting to eighteen thousand dollars, bequeathed to the appellants by the will. The chancellor decreed that the testator did not intend •to charge that part of his estate designated as his plantation, in Leflore county, which we will term the home place, with the legacies bequeathed the appellants; and from this decree the legatees appeal.

The testator left other real estate and personal property besides the home place referred to, and it was the contention of the appellee that the other property of the testator only was intended to be charged with the legacies ; while the appellants contend that all of the property, both real and personal, of the testator was meant to be subject to the payment of the legacies. One of the clauses in the will, which is in item 4, provides as follows:

“It is my further will that said legacies are hereby made a charge on my estate.”

Therefore the exact point involved is whether or not this clause in the will, taken together with the whole will, impresses a charge against all of the property of the deceased, including the home place, of five hundred acres, or whether the testator intended that the legacies should not be charged against the home place.

The intent of the testator, to be ascertained from the whole will, of course, is to govern in its construction, and therefore it will be necessary to set out the will in full, which we quote as follows:

“I, John Obergfell, a resident and citizen of the county of Leflore, state of Mississippi, being- of sound and disposing mind and memory, and conscious of the uncertainty of human life, do make, publish and declare this to be my last will and testament, hereby revoking all other last wills and testaments that may have been made by me.

Item 1.

“I give and devise to my wife, Hattie Lee Obergfell, and my foster children, Galvin Obergfell and Josephine Obergfell, share and share alike, my plantation located in sections three (,3) and four (4), township nineteen (19), range two- (2) west, Leflore county, Mississippi, near Itta Bena, Mississippi, together with all of the improvements thereon, upon the following terms and conditions, that is to say:

“My said wife, Hattie Lee Obergfell is to have the sole use, control and management of said plantation and to be entitled to all revenues, profits, issues and rents to be derived therefrom until Josephine Obergfell shall become twenty-one years of ag,e. My said wife-shall not have the right to alienate or encumber said plantation during the minority of either of said children. From the proceeds of said plantation, she is to provide for the support of said children during their minority, and for their proper education, .the said Galvin Obergfell to be educated at Mississippi Agricultural & Mechanical College, and the said Josephine Obergfell, to be educated at the 1.1. & C. Female College, at Columbus, Mississippi.

Item 2.

“It is my further will, that my said wife, Hattie Lee Obergfell, shall as soon after my death as practicable, have the chancery clerk of Leflore county, Mississippi, appointed guardian of said children, and she is to furnish said chancery clerk from, the proceeds of the crops to be grown on said plantation, the sum of three hundred dollars per year for said Galvin Obergfell until he becomes twelve years of age, and five hundred dollars per year thereafter until he reaches twenty-one years of age; and the sum, of three hundred dollars per year for said Josephine Obergfell until she becomes twelve years of ag*e, and six hundred dollars per year thereafter until she reaches twenty-one years of ag’e. Said sums to be paid said chancery clerk on or before the 15th day of December of each year, during’ the minority of said children; the sums so advanced by her to said chancery clerk to be used by said clerk in the support, maintenance and education of said children until their majority.

“Should either of said children die before they reach their majority, then the survivor is to inherit the interest of the deceased in said plantation, and should both of said children die before reaching their majority, then it is my further will that their two-thirds interest in said plantation, shall be divided between my.wife and the children of my brothers and sister, Louis Obergfell, Grottlieb Obergfell, and Sarah Obergfell, save and except Fred Woessner and William Woessner, who have already been provided for. Said two-thirds of said plantation to be divided as follows: My wife to receive two-thirds of said two-thirds, or four-ninths, and said children one-third, or two-ninths, of said plantation.

Item 3.

“It is my further will that the cotton plantation located in Desha county, Arkansas, near Watson, Arkansas, and known as the ‘Belco Plantation’ comprising about one thousand two- hundred eighty-seven acres, which is owned by me jointly with J. A. Nations, shall be operated and managed by my said \yife, or rather my part of it, for three 3rears after my death, and at the expiration of three 3rears, if it is deemed advisable and to the best interests of my said estate, then it is my further will that my said wife, Hattie Lee Obergfell, shall have said plantation duly appraised by some competent man, or men, and then sell my interest in said plantation, at public sale, upon the following terms, that is to say: One-fourth cash, and the remainder to be evidenced by three notes in equal installments, payable in one, two- and three years, bearing six per cent, interest. It is my further will that in the event the legacies hereinafter provided for, shall not have bfeen paid, then it is my further . will that my said wife shall then pay from the proceeds ' of the sale of my one-half interest, all of said legacies unpaid. Should it be necessary to sell said property in order to pay said legacies, then it is my further will that any excess after paying said legacies, from the proceeds of the sale of said property, shall be divided between my said wife, Hattie Lee Obergfell, and Calvin and Josephine Obergfell, as follows: My wife to receive two-thirds and said children one-third of the excess over and above all legacies, but, should said property not be sold in order to pay said legacies, then my said wife, Hattie Lee Obergfell shall have the' same. -

Item 4.

“I give and bequeath to my nephew, Fred Woessner, the sum of four thousand ($4,000) dollars.

“I give and bequeath to my nephew, William Woessner, the sum of four thousand ($4,000) dollars.

“I give and bequeath to the children of my brothers and sisters, Louis Obergfell, Gottlieb Obergfell, and Sarah Obergfell, wife of Grossman, save and except Fted Woessner and William Woessner, who- have already been provided for, the sum of ten thousand ($10',000) dollars, to be divided equally among them.,

“I give and bequeath to the rural consolidated school of Itta Bena, Mississippi, the sum of two thousand ($2,-000) dollars.

“I give and bequeath to'Margaret Switzer the sum of twenty-five hundred ($2,500) dollars.

‘ ‘ I give and bequeath to my wife, Hattie Lee Obergfell, in trust, for the use and benefit of Herbert Louise, and Lucy Livers Carpenter, tlie sum of one thousand ($1,000) dollars, said sum to be expended in such manner as she may see fit, for their support and maintenance.

“I give and bequeath to Mose Smith, the sum of five hundred ($500') dollars.

“It is my further will that said legacies are hereby made a charge on my estate.

Item 5.

“I give and bequeath to my friend, Albert Aron, all of my stock in the Itta Bena Compress, of Itta Bena, Mississippi.

Item 6.

“I give and bequeath to my wife, Hattie Lee Obergfell, all of the residue of my estate, of whatever character, whether real, personal or mixed, wherever' sit- ' uated.

Item 7.

“Reposing absolute confidence in my said wife, Hattie Lee Obergfell, I hereby appoint her executrix of this, my last will and testament, without bond.

“In witness whereof, I have signed, published and declared this instrument to be my last will and testament, on this the 25th day of July, A. B. 1919. ’ ’

The testimony in the case shows that at the time of the death of the testator, which was but a few days after the execution of the will, in 1919, he had considerable personal property, amounting to probably twenty-seven thousand dollars and that he owned a half interest in a one thousand two hundred-acre place in Arkansas, upon which there was a balance due by him of about thirty-thousand dollars. This Arkansas place was never fully paid for, and consequently was lost to the estate by foreclosure against it.

At the time the testator made his will, general conditions were highly prosperous and land values were very high. This condition changed the next year, and it appears that the personal property, consisting of stocks, bonds, and money, was dissipated through expenditures of the wife, the executrix, without bond, of his will, and the chancellor decreed that she was indebted to the estate in the sum of about seventeen thousand dollars.

The deceased had been married about three years before his death and had adopted the two children who are beneficiaries in the. will, and whose ages were thirteen and nine years, respectively; thus it appearing from the will that the testator intended that these children should receive support and education from the home plantation for many years, until they became twenty-one. The total amount of the legacies given the appellants was eighteen thousand dollars, and it appears from the evidence that the deceased could have reasonably anticipated that his personal property, consisting of money, stocks, and bonds, and other property, would be sufficient to satisfy the legacies given the appellants, who were his nephews and nieces.

After a careful consideration of the language and terms of the whole will, together with the circumstances surrounding the testator at the time of its execution, we do not think the testator intended to charge the home place in Leflore county with the legacies bequeathed the appellants. Notwithstanding the provision in the will that "it is my further will that said legacies are hereby made a charge on my estate,” it seems clear to us from the whole testament that the testator did not intend that the home place given to his wife and two children, which was to serve them specifically for many years, was to be subjected to he payment of the legacies. We think, from the language used in the will, and considering it as a whole, the testator intended that the legacies should be paid out of his personal property, and that, if that were not sufficient, then the Arkansas property was to be sold and the proceeds used in fully paying the legacies.

We hardly believe it could be of any value to dissent and discuss the provisions in the different items of the will, for a careful reading of these clauses, especially items 1, 2, and 3, will, in our opinion, justify the conclusion we have reached. It is very plain the testator did not intend that his home place should be disposed of in any manner or for any purpose until the youngest child was of age; and his direction to pay the legacies out of the proceeds of the sale- of the Arkansas place if the legacies had not already been paid when such sale' was made, is convincing that he- did not intend the home place, specifically bequeathed to his wife and children for their special use and benefit, should be charged with the legacies. A careful reading and study of the three items referred to will demonstrate, in our judgment, that the testator intended the home place in Leflore county should never be impressed with a charge against it to satisfy the legacies bequeathed the appellants.

The decree of the lower court is therefore affirmed.

Affirmed.