Adams v. Hudson

Stevens, J., delivered the opinion of the court. Appellant, Odessa Adams, a minor, by next friend, exhibited her bill in the chancery court of Yazoo county against appellees, who are devisees under the last will — 616 — and testament of one Elias Kincaide, deceased, to recover an' undivided interest in the rents and profits of certain real estate in which the. complainant now claims a vested interest. The testator left a portion of his plantation to his sons and the children of a deceased daughter, hut the interest of these latter are not involved in the present litigation. The testator had a daughter living at the time the will was executed and at the time of his death, and this living daughter, Ida Hudson, had three children, Inez Hudson,“Alva Hudson, and Richard Delee Hudson, grandchildren of the testator. By the terms of the will all of the personal property was bequeathed to Ida Hudson and her three children, and by item 2 a portion of the real estate is devised as follows: “I will and bequeath and dispose of my real estate as follows, to wit: I desire that my grandchildren and their mother as mentioned in item one of this will (Inez Hudson, Alva Hudson, and Richard Delee Hudson and their mother, Ida Hudson) to have exclusive possesion and benefit of my real estate for their support and maintenance until the youngest child becomes twenty-one years of age. Upon the arrival of the youngest of the above named grandchildren, at the age of twenty-one years who may be living at that time, I will and bequeath to the said grandchildren, named in item one of this will, and their mother Ida Hudson, to have and hold in fee simple all that portion of my plantation in Yazoo county, known as the Upper Place,” etc. Items 3 and 4 of the will then read as follows: “Item 3. I nominate, and name as executor of this my last will and testament, R. L. Bennett, and direct that he be not required to give any bond, and he shall determine what amount will be necessary to be expended in the control and cultivation of said plantation and it shall be controlled and cultivated under his orders and direction. — 617 — “Item 4. I hereby appoint the clerk of the chancery court guardian of my grandchildren, the children of Ida Hudson in the event a guardian of their property shall become necessary.” After her father’s death, Ida Hudson and .her children used and enjoyed the portion of the plantation devised to them under the terms of this will, but there arose a contingency which does not seem to have been anticipated by the testator. Ida Hudson intermarried with one Joe Adams, and the issue of this second marriage is Odessa Adams, the complainant in this canse. After the birth of Odessa, Ida Adams died intestate, leaving as her heirs the three Hudson children by the former marriage and the complainant, Odessa Adams. S. S. Griffin was appointed the guardian of the Hudson minors and thereafter became the guardian of Odessa Adams. Subsequent to the death of Ida Adams, the other parties named in the will of Elias Kincaide, deceased, filed their petition in the chancery court of Yazoo county 'against the three Hudson minors, S. S. Griffin, their guardian, and R. L. Bennett, the executor of the will, setting out the will, the remarriage of Ida Hudson, the fact that the testator, Elias Kincaide, was a widower and lived with his daughter, Ida, and that his said daughter kept house for him, and asked for a construction of the. will, and especially as to whether any portion of the real estate could be set apart to the sons and to the children of the deceased daughter, who are expressly made devisees of a portion of the real estate. The executor and S. 8- Griffin, the guardian of the Hudson minors, joined in the petition for a construction of the will. On this petition the chancellor, in June, 1917, construed the will, holding that: The “petitioners under the will of Elias Kincaide, deceased, are not entitled to partition of any of the real estate mentioned in the petition until the youngest of the minor defendants becomes twenty-one years of age, — 618 — and that said Hudson minors are entitled to rents, issues, and profits of all the land owned by Elias Kin-eaide, deceased, for tlieir support, maintenance, and education. ’ ’ Odessa Adams was not a party to this proceeding. After Mr. Griffin had been appointed guardian of Odessa Adams, he filed a motion asking the court to construe the will, to know whether he, as guardian of Odessa Adams, was entitled to claim any of the rents and profits of the land, and in response to this motion the chancellor decreed that petitioner’s ward was “not entitled to any part of the income of the lands devised to the mother of said minor.” These decrees of the chancellor are now pleaded as res adjudicata to the proceedings here instituted by appellant for an accounting and for an interest in the rents, issues, and profits of the plantation. To the petition of appellant in the present case S. S. Griffin, guardian of the three Hudson minors, and E. L. Bennett, executor, filed separate answers, taking issue with the complainant upon her construction of the will, and denying any of the relief prayed for. The chancellor dismissed the petition, and from his decree appellant prosecutes this appeal. The only question,. aside from the question of res adjudicata, is the construction of the will of Elias Kin-caide, deceased, copy of which is made an exhibit to the bill. In disposing of this appeal we shall not base an affirmance upon the plea of res adjudicata. The petition of S. S. Griffin, guardian of Odessa Adams, asking for a construction of the will, was an ex parte proceeding. There were no defendants, and no issue framed. It was more in the nature of a routine or collateral matter in the handling of the minor’s business. In the' other proceeding of Robt. Kincaide v. Inez Hudson et al., No. 3874, appellant was not a party. But, under the view which we entertain of the will, it is unnecessary to decide what effect or bearing the former decrees of the — 619 — court have upon the present issue. The main relief sought by the present petition is that the “complainant he invested with all profits heretofore accrued to which her interest as heir of the said Ida Adams would entitle her, and for such other relief general and special as to” the court may seem meet, and that complainant “he decreed and entitled to participate in the possession and benefit” of said estate. It appears, then, that the primary object of the hill is to share in the profits or to enjoy the usufruct of the plantation. It is conceded that the' Hudson children have not yet * arrived at the age of twenty-one years.' This being so, under the plain terms of the will, the plantation should not be partited, but Inez, Alva, and Richard Delee should continue to enjoy “the'exclusive possession and benefit” of the said real estate “for their support and maintenance until the youngest child becomes twenty-one years of age.” This is the plain direction of the will, and this direction of the testator, being a lawful provision, becomes the law of this case. The provisions of the will here presented for construction are very similar to the will construed in Lowe v. Barnett, Adm’r, 38 Miss. 329. In the Lowe case the estate was bequeathed to the widow and children, and in that case, as in the present case, the mother of the children subsequently married, .and the suit was initiated by the child of the second marriage. In that case the court held: “That the keeping of the property together until one or the other of these events should take place [until the youngest child should become of age or marry] was a trust intended by the testator to be performed specially by his executors in the will,” but that this “does not the less make it an express and positive condition to the division of the property between the parties to whom it is bequeathed, according to the terms specified, nor authorize the court to disregard the plain disposition of the property by the testator;” that “these con — 620 — ditions, as to the division of the property, are limitations upon the estate, which must attach to it, and cannot he disregarded. ’ ’ See, also, Shipp v. Wheeless, 33 Miss. 646; Hancock v. Titus & Co., 39 Miss. 224. Appellant,- then, is not yet entitled to share in the profits or possession of the estate. It follows from what we have said that the hill in this case was properly dismissed. It does not follow, however, that Ida Hudson did not have a vested interest- in the estate which upon her death descended to her heirs at law. We are inclined to the-view that under the provisions of the will Ida Hudson took the same character of estate which the court in the Lowe-Barnett case awarded to the widow; that this interest vested at the testator’s death; but, as said by the court in the Lowe case, i£as she was to have the charge of the children, it was not to be enjoyed by her in severaity, until the youngest child, who was committed to her care, became of age,” etc.; that the interest of both mother and children were vested interests, but the estate was not to be divided, and accordingly the interest of each in severalty was not to be turned over or delivered until the youngest child becomes twenty-one years of age. We say this much to prevent the decree in this case from operating, as a bar to the right of appellant hereafter to sue for ’an undivided interest in the estate when the youngest one of the Hudson children becomes twenty-one years of age, and we expressly direct that this cause be affirmed without prejudice to the rights of appellant to bring another proceeding -at the proper time. Affirmed.