Opinion
No. 38385.
May 5, 1952.
1. Wills — construction — partial intestacy.
A will should be so construed as to avoid partial intestacy if by any reasonable construction this can be done.
2. Wills — construction — effect given each provision.
Effect should be given to each provision of the will in determining the testatrix' intention, as ascertained from the language employed, even though it may be necessary to disregard grammatical mistakes in writing, improper use of capital letters and mistakes in punctuation.
3. Wills — executors declining to serve — effect of.
The fact that the executors named in the will to carry out its directions declined to serve, did not defeat the intention of the testatrix in the disposition of her property.
4. Wills — improvements burial lots — specific directions.
When the will discloses that it was the purpose of the testatrix that a sum named by her, or so much thereof as should be left after prior charges, should be spent around certain graves it was not necessary that specific directions be given as to how the money was to be laid out for that purpose, and the court properly directed the administrator to spend approximately that amount in the improvement of the burial lot.
5. Wills — direction for sale of land.
Where the testatrix owned 141 acres of land and in her will she stated "If Ellie wants to buy the place give him first chance", the statement was sufficient as a direction that the land be sold and to Ellie provided he would offer as much as any other bidder.
6. Wills — upkeep of graveyard lot — trust fund.
Where in addition to the fund for the improvement of the graveyard lot heretofore mentioned the will further provided that someone be hired "to keep those graves up" and that the expenses thereof be paid out of her estate, there was thereby created a trust fund for the stated purpose.
7. Wills — bequest for upkeep of private burying ground — statutes.
The lot in which the graves mentioned in the foregoing headnote were located was a private or family burying ground within the meaning of the trust fund statute, although situated in a country churchyard. Sec. 1273 Code 1942.
Headnotes as approved by Hall, J.
APPEAL from the chancery court of Calhoun County; HERBERT HOLMES, Chancellor.
Frank A. Critz B.H. Loving, for appellants.
In this will there is only one thing provided for definitely, to-wit: and that is give Pernicia Collums $25.00. All the rest of the will is too indefinite, too vague to be upheld.
In the opinion of Judge Anderson in the case of National Bank of Greece, et al. v. Savarika, et al., 167 Miss. 571, 148 So. 649, the Court says: "The courts of this State will not permit a trust to fail merely for want of a trustee, but such courts have no power to create a trust, select the beneficiaries, appoint trustees, and prescribe the plans and details of administration. It is not within their province to make or complete a will for the testator."
Under the question of certainty of wills, 69 C.J., par. 1834, p. 727, is the following language: "As is true of the will generally, and of trusts generally, a fundamental requisite of a testamentary trust is certainty in its material terms as for example the beneficiary, the subject matter or property of the trust, the interest of the beneficiary, the purpose and manner of performance" and further: "stated otherwise, if the language is so vague, general, or equivocal that any of the material elements of the trust is left in uncertainty, the trust must fail. Such a trust must be of so clear and definite a nature that a court can render it effective, in the exercise of its ordinary judicial functions." Citing Smith v. Heyward, 105 S.E. 275, 115 S.C. 145. In this case there was a bequest: "Whatever money or bonds remain after my legacies have been deducted, I desire that the funds shall be divided into two parts, one half to keep up M place, house and garden, etc., held too vague and indefinite to be enforced as a private trust."
What is the difference of keeping up M place, house and garden and hiring some one to keep those graves up. Both are uncertain.
In 69 C.J. p. 732, par. 1840 under heading "Manner of Performance", "The rule of certainty with regard to the material terms of a testamentary trust requires that there be certainty in its provisions regarding the manner in which the trust is to be performed or executed."
The lower court erred in holding that the testatrix ordered the real estate sold. She did no such thing. She provides that if Ellie Chrestman wants to buy the place of the record, then the executors may sell it to him for a reasonable price; if he does not want to buy it, there is no provision for selling it.
The testatrix did not say that she wanted the proceeds used on the graves if it had been sold to Ellie — because she says sell cow, chickens, and pig and use it on our graves.
Ellie did not care to buy the real estate and since there was no other disposition of same in the will, it descended to the heirs at law, there being no provision for any residuary legatees.
The court below should have ordered that the land be divided between the heirs at law. The will should have been held null and void except as to the gift to Pernicia Colums.
Paul M. Moore and W.J. Evans, for appellees.
Since appellants seem to rely primarily on the case of the National Bank of Greece, et al. v. Savarika, et al., 167 Miss. 571, 148 So. 649, we will attempt to show that this case is not applicable to the case at bar, as there is no point at issue or decided in that case that is involved in the present case. In that case the beneficiaries were not named in any way that could be even remotely identified. The decedent might have as well named the Jones girls or the Smith girls as beneficiaries without designating which Jones or Smith girls to whom he referred. In the case at bar there are no uncertainties at all about the beneficiary, as the will is certain that she wanted $1,000.00 to be spent around their graves immediately, and the remainder of her estate to be used for the purpose of maintaining these graves.
It seems that the appellants are contending because the trustees named by the decedent refused to act in the premises, that the effect of their refusal was to destroy this phase of the will, which, of course, it does not do. We think all the authorities agree on this point, but in this connection we desire to cite one case, to-wit:
Yandell v. Wilson, 182 Miss. 867, 183 So. 382. We also submit that this question has been statutorily settled in Mississippi. See Sec. 1273 Code 1942, which reads as follows: "Cemetery may be maintained by trust fund. — When any donation or bequest is made by any person, company or corporation, of money or property to be used for the maintenance and preservation of any private or family cemetery or burying ground, and no trustee be appointed by such person, company or corporation, or if appointed, the trustee should die, resign, or otherwise become incompetent, the chancellor, on petition of any person having, or feeling, any interest therein, may, in vacation or in term time, appoint a trustee to administer the trust on such terms as he may deem proper. If a trustee shall improperly administer the trust, he may be removed by the chancellor and another appointed."
All authorities are in harmony on the question that a will should be construed so as to avoid partial intestacy if by any reasonable construction, this can be done. There are numerous authorities on this question but we call the Court's attention to the recent decision on this point in the case of Richmond v. Bass, et. al., 202 Miss. 386, 32 So.2d 136, together with the numerous authorities cited by the Court in its opinion. See also Vol. 28, R.C.L. (Wills), pp. 189-190.
The Court in construing a holographic will executed by an illiterate or unlearned person, as is evident in the case at bar, may disregard mistakes in writing, paragraphing, punctuation, misspelling, and grammatical inaccuracies. See case of Richmond v. Bass, supra. The Court may also, in a will of this nature, alter the ordinary meaning of particular words and phrases and may substitute other words for those used if it becomes necessary to carry out the intent of the testator. 69 C.J. pp. 85, 86, Secs. 1143, 1144. See also the case of Berry v. Falkes, 60 Miss. 576. See also case of Kinard, et. al. v. White, et. al., 167 So. 636. This last case is also authority on the question of this Court's following and being governed by the chancellor's construction of the will when the lower court had before it the original will and when said original will, as construed, is not before this Court.
Briefly, it is our contention that this will taken as a whole shows conclusively that Nancie Thomas intended to devise her entire estate. As above stated, we start out with the presumption in our favor that she did not intend to die intestate as to any of her property. It is certain that she wanted $1,000.00 used immediately around their graves. In the latter portion of her will, decedent refers to her "estate", which from the context of the whole will, shows conclusively that she meant to include her home, land and everything that remained therein. The word "estate" carries everything unless restrained by particular expressions. See 28 R.C.L., pp. 199, 236. It is sufficient to pass a fee in land. See footnote No. 11 under above mentioned text.
To us it is significant that in the first part of her will decedent refers to dollars but in the last part she used the word "estate". Certainly, testatrix intended for the trustees to sell the real property, her home place. How else could the trustees have given "Ellie" the first chance or opportunity to buy the place without authority being given to sell? Additionally, we find the following language used in the latter part of the will — "Hire someone to keep those graves up, pay all expenses out of my estate. There is nothing against this place." To our minds, this shows conclusively that she meant for the land to be sold by the trustees and the proceeds used to keep up the graves.
The appellants now contend in their brief that since a decree pro confesso was taken against Ellie Chrestman, that the land did not pass under the will, and that the will did not convey her entire estate. However, we contend that first, they are bound by their pleadings in this cause, and we call the Court's attention to Paragraph Thirteen of appellant's bill.
As to the decree pro confesso taken against Ellie Chrestman, we say that it has no efficacy whatever; first, the allegations of the original bill as to Ellie Chrestman, were not sufficient to justify a decree pro confesso against him, but if they were, there was an answer of one of the defendants on file in this cause, and the rule is whenever an answer of any defendant is on file, and said answering defendant shows that the complaints are not entitled to relief, the bill will be dismissed as to all defendants, including those against whom a decree pro confesso was taken. See Griffith Mississippi Chancery Practice, Sec. 263, and the case of Cook, et al. v. Mason, et. al., 160 Miss. 811, 814, 134 So. 139.
In conclusion, we desire to state that it is our contention that the will in this case, together with the testimony adduced in reference to the surrounding circumstances at the time of the execution of the will, and the statements of this old lady to her friends and neighbors, that her intention to create a trust for the purpose of beautifying the three graves, and for the purpose of maintaining and keeping them up in the future is established beyond any doubt. This old lady being an aged person, illiterate and living alone in the country by herself since the death of her son, and all of her near relatives having passed on, and none of her collateral kinspeople, the ones that are now contesting this will, ever came to see her, or in any wise attempted to care for her in her last days as she had to be cared for and waited upon by her neighbors, that it was only natural that she would think of those nearest to her, her husband and son, sleeping in a country graveyard near her home, and where she too would soon rest, and realizing that it would not be long until she too would occupy a place in the burial lot; then it would be natural for her, knowing that it was a custom for each family to keep up their own graves in that community, to think about what would happen to their graves in the future, unless she made provisions therefor, as she had no immediate family or near relatives to look after the same.
Mrs. Nancie Thomas, an elderly widow, approximately ninety years of age, died on September 18, 1947, leaving a holographic will, which was thereafter duly admitted to probate. The three parties to whom the will was addressed declined to serve for the limited compensation therein stipulated, and J.B. Easley was appointed administrator C.T.A.
Mrs. Thomas' husband predeceased her by several years. They had only one child, — a son who was never married and who also predeceased his mother. The only heirs of Mrs. Thomas were therefore collateral kindred. Mr. and Mrs. Thomas and the son were all buried on one lot in a country cemetery in Calhoun County.
The following is a copy of the will as it appears in the record:
"My Will July 23, 1947
To Munro Brasher and Dud Davis and Ruble James if anything happens to me in Death
I want them to see after my things that I leave.
I want one thousand Dollars 1000 — used around our Graves — if that much is left —
Give each 25 Dollars a piece for taking care of th — is Business
What is in the house sell it for what you can get Lawrence and Edell has a plenty.
Give Pernicia Colums 25 Dollars.
Get that money out of the Bank of Bruce. If Ellie wants to buy the place give him first chance if I should die soon.
Sell cows chickens and pig.
Use it on our Graves.
Hiar some on to keep those Graves up
Pay all expincies out of my Estate.
There is nothing againce this place
If you halft to have a Lawyer. Dont get Abb Paterson. Get Stone.
Nancie Thomas
Put concrete then place the steel wire.
Hire this work dun pay out of my money all expences."
Twenty-two of the heirs of Mrs. Thomas brought this suit against her remaining nine heirs and the administrator and alleged that in said will she made no disposition of 141 acres of land belonging to her; they further alleged that said land was incapable of division in kind among the heirs and prayed that the same be sold for a division of the proceeds. They further alleged that by said will no disposition was made of the personal estate and they sought a construction of the will to this effect and prayed that the personal estate be divided among the heirs, after payment of debts, in accordance with their respective interests. No question was raised as to the testamentary capacity of Mrs. Thomas. The chancellor denied the relief sought and dismissed the bill, from which action this appeal is prosecuted.
The will as above set out is copied from the record and the original is not before us. The chancellor had the original before him and found as a fact that it contains no punctuation. This finding is not questioned, and the entire argument of appellants, and the only question in the case, turns upon an interpretation and construction of the will. In this connection we should bear in mind that (Hn 1) a will should be so construed as to avoid partial intestacy if by any reasonable construction this can be done; moreover, (Hn 2) effect should be given to each provision of the will in determining the testatrix' intention, as ascertained from the language employed, even though it may be necessary to disregard grammatical mistakes in writing, improper use of capital letters, and mistakes in punctuation. Richmond v. Bass, 202 Miss. 386, 32 So.2d 136, and numerous authorities therein cited.
With these principles as the basis for our consideration we can do no better than to adopt the reasoning of the learned chancellor. The instrument is directed to Munro Brasher, Dud Davis and Ruble James who are directed to see after the things that are left by the testatrix and for their services they are to receive $25 each. (Hn 3) They declined to serve as executors but that fact could not defeat the intention of the testatrix in the disposition of her property. (Hn 4) Mrs. Thomas wanted "$1,000.00 used around our graves if that much is left." When this will was made she was in poor health and was being looked after by her neighbors. She had some property and money but did not know how much of her estate would be exhausted in discharging the expenses of her last illness and burial. She was devoted to her husband and son and was very solicitous about the care of their graves. If there was as much as $1,000 left she wanted that much spent on their graves along with her own. After conversion of the personal estate into cash and after payment of debts there was a balance on hand of $2,463.52, which does not include the land. While no specific directions were given as to how the money should be spent on the graves, the chancellor directed that the administrator should spend that amount, or approximately that amount, in improving the burial lot. In this we think he was correct. It was not necesary that the will should set out detailed specifications as to exactly what improvements should be made.
The property in the house, as well as the cows, chickens and pig were sold by the administrator and the proceeds placed in the administrator's account. Also, the money in the Bank of Bruce was placed in the administrator's account. All this was in accordance with the directions in the will.
The sum of $25 was devised to Pernicia Colums and the chancellor ordered payment of this bequest. There is no question as to this item.
(Hn 5) The chancellor held, and we think correctly so, that Mrs. Thomas desired that the land be sold and that Ellie (Chrestman) be given the first opportunity to purchase it, provided, of course, that he would offer as much as any other bidder, and the decree directed the administrator to petition for a sale of the land upon hearing of which petition the chancellor would fix the mode and manner of sale.
(Hn 6) The chancellor further held that the dominant purpose and intent of the testatrix was that the graves and cemetery lot be kept up, and that someone be hired from time to time to do this and that the expenses therefor be paid out of her estate, which includes not only the personal estate but also the real estate. In our opinion this is a correct interpretation of the will.
The chancellor adjudicated that the will created a trust fund for the upkeep of the graves and cemetery lot, but left open for future decree what amount should be retained for that purpose. The decree stipulated that after the land has been sold and the expenses of administration paid the interested parties may then petition the court for disposition of the corpus of the estate which will not be needed or required to carry out and completely fulfill the purposes of the trust.
The gist of appellants' argument is that the will is so indefinite and uncertain in its terms that effect can be given to no part thereof except the devise of $25 to Pernicia Colums, and further that no trust is created for improvement and maintenance of the graves and cemetery lot for the reason that no specific directions are given as to just what is to be done. They rely primarily upon a general statement in 69 C.J. and on the case of Smith v. Heyward, 115 S.C. 145, 105 S.E. 275. That case dealt with an attempt to create a private trust for the perpetual upkeep of the house, gardens and grounds constituting the old home place of the testatrix and we do not think it is here in point. Section 1273, Mississippi Code of 1942, expressly authorizes a bequest for the maintenance and preservation of any private or family cemetery or burying ground. (Hn 7) The lot on which the three graves in question are situated, while in a country churchyard, constitutes, in our opinion, a private burying ground within the meaning of the statute, and, at any rate, we feel that the chancellor correctly adjudicated the meaning and intent of the testatrix as to the improvement and maintenance of this burial lot.
The decree is accordingly affirmed and the cause remanded to the lower court so that its terms may be carried out under its supervision.
Affirmed and remanded.
McGehee, C.J., and Kyle, Holmes and Etheridge, JJ., concur.