Shackleford v. Dobbs

Full title: SHACKLEFORD v. DOBBS

Court: Supreme Court of Mississippi

Date published: Dec 20, 1952

216 Miss. 75 (Miss. 1952)

61 So. 2d 669

12 Adv. S. 32

Opinion

No. 38583.

December 20, 1952.

1. Wills — money.

A bequest of money includes money on deposit in some bank subject to check; but beyond this the general rule is that a simple bequest of money in the absence of anything in the context to show that the word is used out of its ordinary or popular significance will not include personal estate in general but will be confined to money strictly so-called.

2. Wills — construction — intention of testator.

In the construction of a will the court must ascertain testator's intention from the four corners of the will and in this endeavor the court's main concern is not so much what the testator meant to say as it is to determine what he meant by what he did say.

3. Wills — presumption against intestacy, must yield to the facts.

The presumption against intestacy is only a presumption which, like all other presumptions, must yield to the facts, and is never applied to the extent of changing or writing a will so as to dispose of property thereby when the provisions of the will do not make such disposition.

4. Wills — presumption against intestacy.

Where the testatrix owned a commercial building not disposed of in her will and as to which she died intestate, the presumption against intestacy disappears as a factor in the construction of her will.

5. Wills — money — postal certificates and bonds.

A bequest in a will of money when there is nothing in the will to substantially support a broader meaning will not include testator's postal savings certificates and bonds.

Headnotes as approved by Hall, J.

APPEAL from the chancery court of Tishomingo County; W.H. INZER, Chancellor.

Sweat Sweat, for appellant.

I. The word "money" in this will was used in its commonly accepted sense, to-wit, a medium of exchange. 69 C.J. Sec. 1434, p. 392; Schoeler on Wills, Sixth Ed., Sec. 1132, p. 1292; In re Estate of Annie V. Ingram, (Pa.), 93 A.L.R. p. 510; Ann. 93 A.L.R. 515, citing Ill., Ky., N.H., N.J., Pa.; W.W. Carter v. Robert Cox, 44 Miss. 148; Webster's Dictionary; Black's Law Dictionary; 5 Humph. 140; 31 Tex. 10; 45 Tex. 305; 14 Johns 1; 1 Johns Ch. 231; Words and Phrases, 3rd Series, Vol. 5, p. 195; Thomas v. Houston, 181 N.C. 91, 106 S.E. 466, 468; Words and Phrases, 5th series, Vol. 4, p. 32; In re Ingham's Estate, 315 Pa. 293, 172 A. 662, 663, 93 A.L.R. 510, 532 Anno.; Brearley v. Lalor, 15 N.J. Eq. 108; Hancock v. Lyon, 67 N.H. 216, 29 A. 628; Carter v. Cox, 44 Miss. 148.

II. The court erred in admitting testimony that the testatrix referred to the postal certificates as her money. Curry Naylor, Executors v. Murphy, et al., 35 Miss. 473; Love v. Buchanan, 40 Miss. 758; McGee, et al. v. McNeil et ux., 41 Miss. 17; 57 Am. Jur., Sec. 1111, p. 711; Anno. 94 A.L.R. 29; 1 Jarman on Wills 428; 1 Redfield on Wills 418-443; Schlottman v. Hoffman, 73 Miss. 188; Broom's Leg. Max. Sec. 555; Sluigsby v. Granizer, 7 H.L. Cas. 284; Johnson v. Delome, etc., Co., 77 Miss. 15; Gilliam v. Chancery and Murray, Executors, 43 Miss. 437; Welch v. Welch, 147 Miss. 729, 113 So. 197; Ball v. Phelan, et al., 94 Miss. 293, 47 So. 956; Yeates v. Box, 198 Miss. 602, 22 So.2d 411; Rice, et al. v. McMullen, 207 Miss. 706, 43 So.2d 195.

III. The testatrix purposely died partially intestate. 57 Am. Jur., Sec. 1159, p. 756; 69 C.J., Sec. 1148, p. 95.

IV. There was no testimony at all that the testatrix ever referred to United States bonds at any time as her money.

Cunningham Cunningham, for appellee.

I. If the dominant intent and purpose of a testator may be ascertained, it does not matter how awkwardly it may be expressed if clearly stated, and it is construed liberally to carry out that purpose. Holcomb v. Holcomb, 173 Miss. 192, 159 So. 564, 566; Davenport v. Collins, 96 Miss. 716, 51 So. 449.

II. It is the well established rule in Mississippi that "a will should be so construed as to avoid partial intestacy, if by any reasonable construction this can be done." Richmond v. Bass, 202 Miss. 386, 32 So.2d 136, citing the following cases: Vaiden, et al. v. Hawkins, et al., 59 Miss. 406; Ball v. Phelan, et al., 94 Miss. 293, 49 So. 956, 23 L.R.A., N.S. 895; Hale v. Heilson, 112 Miss. 291, 72 So. 1011, approved in Whitaker v. Commercial National Bank Trust Co., 179 Miss. 167, 174 So. 890; see also McKay v. Lemly, 206 Miss. 456, 40 So.2d 281.

III. We submit that the learned chancellor was correct and proceeded in perfect harmony with general law and with the law of this State in admitting the testimony of the two post office employees which is made the subject of objection in Point II of appellant's brief. 57 Am. Jur., Wills, Sec. 1089, p. 700, and the annotation cited there in 94 A.L.R. 160, 164; Strickland, et al. v. Delta Inv. Co., 163 Miss. 772, 137 So. 734; McKay v. Lemly, 206 Miss. 456, 40 So.2d 281.

IV. Learned chancellor construed paragraph four of the will to mean that the testatrix, "by the use of the word 'money' intended to and did bequeath to her sister, Mrs. Dobbs, all of her money on deposit in the United States Post Office at Booneville, Mississippi, amounting to about $2,000.00, and all of her money invested in United States Government bonds which were placed for safe keeping in the Bank of Belmont, Belmont, Mississippi." We submit that the overwhelming weight of authorities sustains his findings in so constructing this will. 93 A.L.R. anno. beginning on page 514 and covering the following thirty-two pages in the very exhaustive treatise of this subject. We submit that the overwhelming weight of authorities contained in this 32 page annotation sustains the position of the learned chancellor without doubt. We particularly invite the Court's attention to Vol. 27 Words Phrases, Perm. Ed., Money, p. 432, et seq.

HALL, J.

Mrs. Easter Holley Shackleford, wife of appellant, died leaving a holographic will in the following words:

"STATE OF MISSISSIPPI TISHOMINGO COUNTY

1. I, Easter Holley Shackleford, being more than twenty-one years of age, and of sound disposing mind and memory, do make and publish this my last will and testament revoking all others.

2. I will and bequeath to my husband W.B. Shackleford my home 'til death or he re-marries; after either to my sister Flora Holley Dobbs.

3. I will and bequeath to my sister Flora Holley Dobbs my one-half interest in the farm that Brother Archie Holley and I own jointly in Prentiss County if it remains in our possession.

4. Above this if I possess any money of my own I bequeath it to sister Flora Holley Dobbs with the following:

My crochet bedspreads;

My machine and quilts in quilt-box; and rest of household fixtures stay for my husband until death or he re-marries then sister can dispose of same.

5. I nominate and appoint as my administratrix of this will by Sister Flora Holley Dobbs, Belmont, Miss., and I hereby vest her with full authority as such administratrix carry out all the terms, and provisions of this my last will. I hereby will and provide that she be not required to enter into any bond or to make an accounting to any court for her acts of executorship of this last will and testament."

Mrs. Shackleford left no cash on hand and left no money on deposit in any bank subject to check. She died leaving some postal savings certificates and some United States Savings Bonds. This suit is for construction of Item 4 of the will and the specific question presented is whether the postal savings certificates and bonds passed under the will to Mrs. Dobbs or whether, not being disposed of by the will, the same goes to her husband, appellant herein, who is her sole and only heir at law.

It seems to be almost universally held that (Hn 1) a bequest of money includes money on deposit in some bank subject to check. As was stated by this Court in Martin v. State, 200 Miss. 142, 26 So.2d 169, "a bank check cashed in due course is for all practicable purposes, under the business customs of the day, the equivalent of the money itself, being the immediate instrumentality by which the money is obtained." And in Woodruff v. Mississippi, 66 Miss. 298, 6 So. 235, we held that the word "money" as used in an act of the legislature means "money which constituted the basis of the general business of the country and was a legal tender for the payment of debts." The Woodruff case went to the Supreme Court of the United States and was reversed, but not upon an improper definition of money. Woodruff v. Mississippi, 16 S.Ct. 820, 162 U.S. 291, 40 L.Ed. 973.

In Carter v. Cox, 44 Miss. 148, 155-156, this Court said: "We learn from Smith's 'Wealth of Nations,' that 'money was originally stamped coin, and afterwards, anything that generally takes its place in buying and selling'. This author also says that, 'to prevent abuses, it was found necessary to fix a public stamp upon certain quantities of such particular metals as were in those countries commonly made use of to purchase goods.'

"Webster gives this definition of money: '1. Coin, stamped metal, pieces of metal, usually gold, silver or copper, stamped by public authority, and used as the medium of commerce.' '2. Hence any currency usually and lawfully employed in buying and selling as the equivalent of money, as bank notes, and the like.'"

As to the word "money" as used in a will the authorities are in hopeless conflict on the question whether it would carry securities such as are here involved. This conflict is shown in numerous authorities collated in the annotation in 93 A.L.R. beginning on page 514. It is to be noted, however, that some of the apparent conflicts arise because of the use of some other words in addition to the single word "money". Since this is a case of first impression in Mississippi we are free to adopt that line of authorities which appeals to us as being more in line with reason. Therefore we adopt that part of the above mentioned annotation shown in 93 A.L.R. at pages 515-516 as follows:

"The general rule is that a simple bequest, in the absence of anything in the context to show that the word 'money' is used out of its ordinary or popular significance, will not include personal estate in general, but will be confined to money strictly so-called.

"Illinois. — Decker v. Decker (1887) 121 Ill. 341, 12 N.E. 750.

"Kentucky. — Pohlman v. Pohlman (1912) 150 Ky. 679, 150 S.W. 829.

"New Hampshire. — Hancock v. Lyon (1892) 67 N.H. 216, 29 A. 638.

"New Jersey. — Re Rogers (1920) 91 N.J. Eq. 294, 109 A. 16.

"Pennsylvania. — Dodson's Estate (1916) 253 Pa. 344, 98 A. 617; Carr's Estate (1893) 13 Pa. Co. Ct. 643; Smith's Estate (1896) 6 Pa. Dist. R. 329, 19 Pa. Co. Ct. 516.

"England. — Glendening v. Glendening (1846) 9 Beav. 324, 50 Eng. Reprint, 368; Larner v. Larner (1857) 3 Drew. 704, 61 Eng. Reprint, 1072; Langdale v. Whitfield (1858) 4 Kay J. 426, 70 Eng. Reprint, 178; Barclay v. Maskelyne (1858) 5 Jur. N.S. 12; Cowling v. Cowling (1859) 26 Beav. 449, 53 Eng. Reprint, 971; Montague v. Sandwich (1863) 33 Beav. 324, 55 Eng. Reprint, 392; Re Townley (1884) 50 L.T.N.S. 394; Re Hunter (1908) 25 Times L.R. 19; Re Taylor (1923) 1 Ch. 99, 15 B.R.C. 1-C.A.; Re Gates (1929) 45 Times L.R. 522 — C.A.; Re Emerson (1929) 1 Ch. 128; Re Putner (1929) 45 Times L.R. 325; Re Collings (1933) 1 Ch. 920; Re Shaw (1929) W.N. 246.

"Ireland. — Dillon v. M'Donnell (1881 Ir. L.R. 7 Eq. 335; Boardman v. Stanley (1873) Ir. Rep. 7 Eq. 342; Caldbeck v. Stafford (1930) Ir. R. 196.

"In Caldbeck v. Stafford (1930) Ir. R. 196, it was said: 'Looking at all the authorities, and endeavoring to reconcile them as far as possible, the result would appear to be this: The primary meaning of the word "money" is the strict legal meaning in the sense that it is the meaning adopted by lawyers in drafting legal documents, and it is the meaning in which the word must be taken to have been used in any document which the court holds is a document that should be presumed to adopt legal language, unless such construction leads "to some absurdity or some repugnance or inconsistency with the rest of the instrument." But in the case of a layman's will there is no presumption that the word "money" has been used in the clear and unambiguous sense in which it is used by lawyers, and the court may look at once both to the context and to the surrounding circumstances, without being compelled, before doing so, to find some pretext or justification in the context alone. If, however, the result of such a complete survey is entirely negative, then the court, which must make a selection on some ground, can do nothing but decide in favor of the primary or legal meaning, for the simple reason that it is the primary or legal meaning, and is at least a reason.'

"The word 'money', in its primary and ordinary signification, means cash or coin, but may also be taken to mean bank notes. Barrett v. White (1855) 1 Jur. N.S. (Eng.) 652; Downing v. Townsend (1755) I Ambl. 280, 27 Eng. Reprint, 189; McCullen v. Daughtry (1925) 190 N.C. 215, 129 S.E. 611.

"Thus, a gift in a will of 'money', with nothing in the context to explain or define the sense in which it is used, includes cash, bank notes, and money in bank, but does not include choses in action or securities. Dillard v. Dillard, (1899) 97 Va. 434, 34 S.E. 60.

"The words 'any cash left by me' were held in Stedenfeld v. Stedenfeld (1920) 92 N.J. Eq. 241, 114 A. 406, to mean money in the possession of the testatrix or on deposit in bank."

A well reasoned case which supports our view is Christ's Home v. Mattson, (N.J.) 173 A.L.R. 651, 55 A.2d 14, from which we quote as follows:

"It is well settled by the greater weight of respectable authority that 'money' means money and money only unless there is in the context of the will something to indicate that the testator intended a more extended meaning. Confining our attention to the specific context of the will before us, we are unable to ascertain therefrom that the word 'money' appearing in the paragraph 'What money there is left to go Christ Home, Warminister Bucks Co., Pa.' was intended by the testatrix to mean anything other than 'money', as it is commonly and universally understood to mean cash in hand or on deposit to the credit of decedent. (Hn 2) It has been said repeatedly, the Court's main concern is not so much what the testator meant to say as it is to determine what he meant by what he did say. We cannot speculate as to the testator's intention; we must ascertain that intention from the four corners of the will. March v. Norristown Penn. Trust Com. 123 N.J. Eq. 282, 197 A. 276; New Jersey Title Guarantee, etc., Co. v. Dailey, 123 N.J. Eq. 205, 196 A. 703. It is regrettable, but true, that some confusion exists as to how far the Courts shall go to ascertain the testator's intent. Certain jurisdictions have been, in our opinion, over-liberal in their zeal to ascertain the precise state of the testator's intention and have thus been led into the realm of conjecture and speculation. We hold that the more salutary and reliable rule is that which limits the court's determination of intention to the express words that were used by the testator."

It is argued by appellee that there is a presumption against intestacy which should come to her aid and require such a construction of the will as would award the postal savings certificates and bonds to her. In Williams v. Gooch, 208 Miss. 223, 44 So.2d 57, the same argument was urged upon us, in response to which we said: (Hn 3) "The presumption against intestacy is, after all, only a presumption which, like all other presumptions, must yield to the facts, and it has never been recognized or applied by this Court to the extent of changing or writing a will so as to dispose of property under the will when the provisions of the will itself do not make such disposition." (Hn 4) One outstanding fact in this case as shown by the record is that Mrs. Shackleford owned a commercial building which was not disposed of under the will and as to which she died intestate. The presumption against intestacy therefore passes out of the picture.

(Hn 5) We conclude that the learned chancellor was in error in holding that the word "money" as used in this will served to bequeath to appellee the deceased's postal savings certificates and bonds. The decree will therefore be reversed and judgment entered here.

Reversed and judgment here.

Roberds, P.J., and Kyle, Arrington and Ethridge, JJ., concur.