Opinion
No. 39246.
May 24, 1954.
1. Wills — construction — personal property — includes debt owing testatrix.
Where terms of will gave first beneficiary testatrix's real and personal property, and testatrix, after making such will conveyed to first beneficiary her house and its contents by deed reciting acknowledgment of consideration, the bequest covering personal property was broad enough to include and did include any alleged remaining indebtedness beneficiary might owe for the conveyance.
2. Wills — construction — term "money."
The term "money" when used in a will covers only actual money such as cash on hand or on deposit in bank, unless there is something in the context of the will to indicate that testator intended otherwise.
3. Wills — construction — debt owing testatrix — personal property.
A debt owing to deceased at the time of her death is a chose in action, personal property, and not money.
4. Wills — construction — money in bank.
Where terms of will gave second beneficiary such money in testatrix's bank account as might be left after payment of debts and erection of monument, the bequest to such beneficiary included only money existing in bank account at testatrix's death and could not be extended to include an alleged balance due by another beneficiary on purchase price of house.
5. Wills — parties — dispute between beneficiaries.
Where second beneficiary under will filed bill seeking discovery, and an alleged balance due by first beneficiary to testatrix at date of her death, both claiming right thereto under terms of will, and did not join testatrix's heirs, the dispute being only between contending beneficiaries, failure to join testatrix's heirs as parties to interpretation of will was not error.
6. Discovery — bill — waiving answer under oath.
Bill seeking discovery which on its face showed complainant was entitled to no relief, and which waived answer under oath, was not a good bill of discovery.
Headnotes as approved by Hall, J.
APPEAL from the chancery court of Clarke County; WILLIAM NEVILLE, Chancellor.
Sam O. Buckley, Meridian, for appellant.
I. The trial court erred in not requiring the heirs at law of the deceased, Mrs. Eldridge, to be brought into court before interpreting the will. Hancock v. Reedy, 181 Miss. 830, 180 So. 81; Marx v. Hale, 119 Miss. 410, 81 So. 119.
II. The lower court erred in sustaining the general demurrer to the amended bill of complaint, because such complaint was good as a bill of discovery. Universal Life Ins. Co. v. Keller, 197 Miss. 1, 17 So.2d 797.
III. The trial court erred in sustaining the general demurrer to the amended bill in holding that any debt owed an estate is considered personal property when applied to this particular will of the said Mrs. Eldridge, deceased; in not finding that said item One of said will was revoked or adeemed by conveyance of the property therein specified prior to the death of the Testatrix; and in misinterpreting item Three of said will by failing to find that Mrs. Willie Deane Davis was entitled to receive the proceeds of the sale of realty or other money due the estate of the said Mrs. Eldridge, deceased, under said item Three. Blaisdell v. Coe, 83 N.H. 167, 139 A. 758; Brady v. Paine, 391 Ill. 596, 63 N.E.2d 721, 162 A.L.R. 138; Callicott v. Horn, 161 Miss. 395, 137 So. 190; Campbell v. St. Joseph's Industrial School (Del.), 53 A.2d 768; Dantone v. Dantone, 205 Miss. 420, 38 So.2d 908; Dollahite v. Orne, 10 Miss. 590, 2 Sm. M. 590; Everett v. Hubbard, 199 Miss. 857, 25 So.2d 768; First Natl. Bank v. Union Hospital, 281 Mass. 64, 183 N.E. 247; Gorham v. Chadwick, 135 Maine 479, 200 A. 500; Industrial Trust Co. v. Saunders, 71 R.I. 94, 42 A.2d 492; In re Kamba, 230 Wis. 246, 282 N.W. 570, 119 A.L.R. 1383; In re Kipp, 37 N.Y. Supp.2d 541; In re Noble, 141 Kan. 432, 41 P.2d 1021; Jackson v. McCoy, 56 Miss. 781; Kimbrough v. Curtis, 50 Miss. 117; Lane v. Railey, 280 Ky. 319, 133 S.W.2d 74; Lansdale v. Dearing, 351 Mo. 356, 173 S.W.2d 25; McCorkle v. Brown, 17 Miss. 167, 9 Sm. M. 167; McCullen v. Daughtry, 190 N.C. 215, 129 S.E. 611; Mann v. Haines, 146 Kan. 988, 73 P.2d 1066; Pan-Am Pet. Corp. v. Barkwell, 203 Miss. 833, 33 So.2d 451; Perrin v. Morgan, 1 A.C. 399; Welch v. Welch, 147 Miss. 728, 113 So. 197; Secs. 495-656, Code 1942.
IV. There is no estoppel. Gay v. Edwards, 30 Miss. 218.
Tally D. Riddell, G.F. Dabbs, Jr., Quitman, for appellee.
I. Appellant contends that the trial court erred in not requiring the heirs at law of deceased, Mrs. Eldridge, to be brought into court before interpreting the will. Hancock v. Reedy, 181 Miss. 830, 180 So. 81; Marx v. Hale, 119 Miss. 410, 81 So. 119.
II. The appellant contends that the Court erred in sustaining the general demurrer to the amended bill of complaint because such complaint was good as a bill of discovery. Griffith's Miss. Chancery Practice (2d ed.), Sec. 429 p. 425.
III. The appellant contends that the Court erred in sustaining the general demurrer to the amended bill in holding that any debt owed an estate is considered personal property when applied to the will of Mrs. Eldridge, deceased; in not finding that item One of said will was revoked or adeemed by conveyance of the property therein specified prior to the death of the Testatrix; and in misinterpreting item Three of said will by failing to find that Mrs. Willie Deane Davis was entitled to receive the proceeds of the sale of realty or other money due the estate of said deceased. First Natl. Bank of Hattiesburg v. Ellison, 135 Miss. 42, 99 So. 573; Shackleford v. Dobbs, 216 Miss. 75, 61 So.2d 669; Ware v. Ware, 218 Miss. 694, 67 So.2d 704; Sec. 690, Code 1942.
IV. Appellant is estopped from disputing the operation and effect of the deed. Campbell v. State Highway Comm., 212 Miss. 437, 54 So.2d 654; Day v. Davis, 64 Miss. 253, 8 So. 203; 31 C.J.S., Sec. 53 p. 230; Vol. VI, Thompson on Real Property (Perm. ed.), Sec. 3242 p. 412. William Haralson, Hattiesburg, Amicus Curiae.
I. The problem of interpreting said will never gets to the question of any debt being considered personal property as contended for by the appellee, Mrs. Lowy; nor does it turn upon a definition of money as advanced on behalf of the appellant, the said Mrs. Davis. The reasons for this contention are obvious.
II. Item One of said will was adeemed or annulled. This extinction of clause One took place when Mrs. Lowy accepted from the said Mrs. Eldridge, during her lifetime, a warranty deed to said real estate for the consideration of $2,500, as will more fully appear from the cases hereinafter cited.
III. A legacy of thing which is not in existence or has been disposed of, so that it does not form part of testator's estate at time of his death, is extinguished or adeemed. Carter v. First Natl. Bank, 237 Ala. 47, 185 So. 361; Dantone v. Dantone, 205 Miss. 420, 38 So.2d 908; Hurt v. Davidson (Fla.), 178 So. 556; National Bank of Greece v. Savarika, 167 Miss. 571, 148 So. 649; Sorrels v. McNally, 89 Fla. 457, 105 So. 106; Welch v. Welch, 147 Miss. 728, 113 So. 197; Williams v. Gooch, 208 Miss. 223, 44 So.2d 57.
IV. The appellee, Mrs. Lowy, sought in the trial court to avoid the principle of ademption by saying that a debt is personal property. First Natl. Bank of Hattiesburg v. Ellison, 135 Miss. 42, 99 So. 573.
V. Does debt mean personal property when used in this will? We do not think so. What it means in the will before us, must be determined from the wording of the will. To hold that it was the intention of the Testatrix to bequeath the $2,500 debt to Mrs. Lowy, would write into the will language which the Testatrix did not use.
VI. Furthermore, this case of First National Bank of Hattiesburg v. Ellison, supra, has no application to the will sought to be construed here. For the house of the Testatrix was sold and thus this asset of the estate of Mrs. Eldridge was changed. It is immaterial whether it was changed into money, a note or other evidences of debt. Indeed, as in the Florida case above, the Testatrix may have traded the house in Enterprise to Mrs. Lowy, the defendant, for another house. Yet, as to this other house, no mention of it being made in the will, the Testatrix would have died intestate as to the same. In the Welch case, supra, a Packard was traded for a Lincoln car, but the Lincoln car went to the heir at law and not the widow, who was a legatee in the will. So, no matter what we call the $2,500, whether money or personal property, Mrs. Eldridge did not say in her will what disposition she desired to make of this $2,500. Therefore, under this state of facts, the will did not cover this new situation, and the money due from the sale of the house should go to the heirs at law.
VII. According to the contentions being made, the will is susceptible of three different constructions. First, Mrs. Lowy, the defendant, contends that the Testatrix intended in her will to leave her the proceeds from the sale of the house, that is, the $2,500 called for as a consideration in the deed, on the theory that a debt or cause of action is personal property. Second, Mrs. Davis, one of the complainants, contends that the $2,500 due under the deed is money; and, under item Three, the Testatrix left to her, the said Mrs. Davis, whatever money may be left after all expenses are paid. Her position is that item Three is a residuary clause or provision. Third, it is respectfully suggested on behalf of the heirs that the $2,500, by whatever terms it may be called, whether money, a debt, or what not, is not covered by the will; that is, as to this $2,500, Mrs. Eldridge died intestate, because of the principle of ademption. Therefore, this money should be recovered from Mrs. Lowy, appellee, and distributed to the heirs at law.
VIII. If testator conveys the realty which he has devised, to the persons to whom he has devised it, they take title under the conveyance, and not under the will. In a case of this sort, there is not only an ademption because the testator does not own the realty at the time of his death, but also because he has satisfied the devise during his lifetime by such conveyance.
IX. Is not this exactly the case at bar? It is. For the appellee, Mrs. Lowy, took title under the deed, and not by the will; and the heirs have a right to know whether or not she paid for it. If she did not, then she should be required to do so.
X. We most respectfully suggest to this appellate court that it would be a gross injustice for it to sanction any interpretation of said will other than that sought by said heirs at law, and that this case should be remanded to the trial court with directions for it to ascertain and summon all of the heirs at law of the said Mrs. Eldridge, and to conduct all further proceedings in the light of the foregoing interpretation of said instrument.
On September 7, 1949, Mrs. Martha Josephine Eldridge duly executed her last will and testament, the pertinent provisions of which are as follows:
"Item I. To my niece Emma Clair Lowy I leave my personal property and real estate as it stands in Enterprise, Clarke County, Miss.
"Item II. My money in First National Bank in Meridian, is to be used for a monument on my grave and to pay all outstanding bills such as doctors and nurses fees, and any and all debts which I may owe.
"Item III. I leave to my niece Willie Deane Davis whatever money may be left after all expenses are paid."
On November 10, 1951, Mrs. Eldridge conveyed to Mrs. Lowy by warranty deed her dwelling house and contents and the lot on which the house stands, reserving a life estate. The consideration named in this deed is $2,500.00 "the receipt of which is hereby acknowledged."
Mrs. Eldridge died on February 21, 1953, and her will was thereafter duly admitted to probate. Thereafter a bill of complaint was filed, and subsequently an amended bill was filed by Mrs. Davis in which the Administratrix under the will joined as a party complainant against Mrs. Lowy and her husband wherein it was alleged that the $2,500.00 consideration named in the deed has never been paid and in which a discovery was asked as to whether the same had been paid, and, if so, how and when it was paid, and a judgment was sought against the defendants for the unpaid balance of the purchase price of the land together with a lien upon the land to satisfy the same. A general demurrer was filed by the defendants and sustained by the chancellor, and from that action this appeal is prosecuted by Mrs. Davis. The administratrix c/t/a does not appeal.
(Hn 1) Appellant makes three contentions with which we will deal. One is that the lower court erred in sustaining the demurrer, and in this connection it is argued that under the will Mrs. Eldridge left to Mrs. Lowy only her home and its contents and that that bequest lapsed or was adeemed upon the conveyance of that property to Mrs. Lowy, and that the alleged debt owing for the purchase price thereof constitutes money which should go to Mrs. Davis under Item III. We do not agree with appellant's contention. The devise under Item I covered not only the home and its contents but it also covered personal property. The personal property was not restricted by the terms of the will to merely the contents of the home but was broad enough to cover the alleged debt herein sued for. The construction which appellant seeks as to Item I is not to be found in the will and for us to adopt it would necessitate our rewriting the will, which we are not authorized to do.
As to the contention that the indebtedness for the alleged balance due on the purchase price of the house and lot was money which would pass to Mrs. Davis under Item III, (Hn 2) we held in the case of Shackleford v. Dobbs, 216 Miss. 75, 61 So.2d 669, that the term "money" when used in a will covers only actual money, that is to say, cash on hand or on deposit in bank, unless there is something in the context of the will to indicate that the testator intended otherwise. (Hn 3) That decision was followed with approval in In Re Ware's Estate, — Ware v. Ware, 67 So.2d 704, not yet reported in the State Reports, in which we held that a debt owing to deceased at the time of his death is a chose in action, personal property, and not money. In the will of Mrs. Eldridge she clearly disposed of her money in Items II and III and of her other personal property in Item I. There is nothing in its context to indicate that she intended anything except her money to pass under Items II and III. This being true, if there was any indebtedness owing on the purchase price named in the deed, the same was a chose in action, — personal property, — and passed to Mrs. Lowy under the express terms of the will. (Hn 4) The chancellor followed this line of reasoning in sustaining the demurrer and said that if anything was due and was converted into money by the administratrix, then he would be forced under the will to turn the same over to Mrs. Lowy under the will upon dissolution of the estate, and that consequently it would be a vain and foolish thing to proceed further with the suit. We think he was correct in the conclusion reached.
(Hn 5) It is also contended that the chancellor erred in interpreting the will without requiring all the heirs at law to be made parties to the suit. Because of the peculiar nature of the bill of complaint in this cause and the question raised by the demurrer it was necessary for the court to interpret Items I and III of the will as between Mrs. Davis and Mrs. Lowy, just as it has been necessary for us to do in passing upon the appeal as to whether the demurrer should or should not have been sustained, but the lower court's and our interpretation is not under a proceeding for construction of the will and is not binding upon any of the heirs except Mrs. Davis and Mrs. Lowy and determines the issue only as between them as raised by the bill of complaint. Mrs. Davis came into court relying upon the will and exhibited a copy thereof to her original and amended bills of complaint, and she specifically claimed in her suit that under Item III of the will she was entitled to recover from Mrs. Lowy any unpaid portion of the $2,500.00 consideration named in the deed. Appellant raised the issue herself without bringing in all the heirs and should not be heard to complain in this Court that the court below was without authority to decide the case upon the issue which she raised.
(Hn 6) The other contention argued by appellant is that the amended bill is good as a bill of discovery regardless of everything else therein contained and that for this reason the demurrer should not have been sustained. There are two reasons why the bill is not good as a bill of discovery. The first is that it showed no cause of action in favor of complainant and was therefore merely a "fishing bill." In Griffith's Mississippi Chancery Practice, Section 429, it is said: "Although it may be true that the facts and the proof thereof may be within the exclusive possession and keeping of the defendant and although for that reason it may be difficult to state them in such a way as to disclose a meritorious cause of action, nevertheless, since discovery is merely a means to the end of making the necessary proof of a case for relief, the complainant must show himself entitled to relief against the party made defendant without which showing the bill would be only a fishing bill, and therefore not maintainable." Here the bill wholly failed to show that complainant was entitled to any relief against the defendants, regardless of whether the consideration for the deed had been paid or not paid. The other reason why the bill is not good as a bill of discovery is that the original bill and the amended bill both specifically waived answer under oath. In Griffith's Mississippi Chancery Practice, Section 364, page 350, it is said: "A bill which waives an answer under oath thereby waives the demand for a discovery, — a complainant cannot call on a defendant for any discovery except on condition that the answer be a sworn one with the privileges that belong to a sworn answer."
Affirmed.
Roberds, P.J., and Kyle, Arrington and Ethridge, JJ., concur.