Spiva v. Coleman

Sykes, J., delivered the opinion of the court. The appellees complainants in the. chancery court, in their bill filed after the death of Mrs. Priscilla Coleman claimed certain property as devisees under the will of Henry Coleman, deceased. Mrs. Priscilla Coleman had attempted! to devise this property to appellants (defendants in the lower court). A demurrer was interposed to the bill which was overruled by the court. From which decree an appeal was granted to this court. The question here presented is a construction of articles 2 and 3 of the will of Henry Coleman. Article 2 and — 150 — that part of article 3 to be construed read as follows: “Art. 2. I will bequeath all the property real, personal or mixed of every description whatever (after my debts and funeral expenses are paid and a suitable tomb erected over my grave as provided for in article one of this will) of which I may die seized and possessed of to my beloved wife, Priscilla Coleman, to have, use, dispose of or to sell and convey absolutely if she so desires. “Art. 3. That at the death of my wife, said Priscilla Coleman, if there shall remain any of the said property or proceeds thereof which I shall die seized and possessed undisposed of by said P'riscilla Coleman before her death then it is my will that one half of my said property or the proceeds1 thereof I may die seized and possessed undisposed of by said wife Priscilla before death shall be divided among my sisters, nephews and nieces as follows, to wit,” naming certain devisees. The property devised to Mrs. Priscilla Coleman by Henry Coleman under this will, undisposed of by her during her lifetime, Mrs. Priscilla Coleman attempted to devise to defendants by will. The question for determination here is whether or not, under article 2' of Henry Coleman’s will, Mrs. Coleman was devised a fee-simple title to the property in question, or whether, when construing article 2 and article 3 together, she was merely devised a life estate with power to dispose of it during her lifetime. Articles 2 and 3 of this will in all material aspects are similar to the will of Samuel Selig, construed by us in the case of Selig v. Trost et al., 110 Miss. 584, 70 So. 699. In that case it said: “Taking the will by its four -corners and construing it as a whole, it is clear that the testator did not mean to vest his wife with power to dispose of the property by will, but that what he did mean is simply this: That his wife should have the use and enjoyment of the property during her lifetime, with full power to mortgage or sell it, — 151 — and that in event it, or any portion thereof, should not he sold hy her, it should he divided after her death equally among his children. ’ ’ In this case, it therefore follows that the property undisposed of hy Mrs. Coleman during her lifetime goes to the devisees mentioned in this will. The lower court so held, and its decree is affirmed, and the cause remanded, with leave to the defendants in the lower court to answer the bill within sixty days after the mandate of this court has reached the lower court. Affirmed and remanded.