Lowe v. Barnett

HaNDY, J., delivered the opinion of the court. This was a petition filed in the Court of Probates of Yazoo county, by the guardian of Francis M. Lowe, seeking to recover the share of his deceased mother in the personal estate of Hiram Plagan, deceased, who died leaving a will, by which, it is alleged, he bequeathed his estate to his widow and children. The widow subsequently married a second husband, and died leaving Francis M. Lowe, her only child of that marriage, and the petition is filed in his behalf to recover her interest claimed under the will. The claim of the petitioner depends upon the provisions of the will, which are as follows : “ It is my wish that all of my property of all kinds be kept in the hands of my executors, to be hereinafter named, until all my children become of age, at the same time allowing to each one, as he or she becomes of age, to withdraw his or her portion. It is also further my wish, that my executors shall continue to cultivate my lands with the negroes I now own, and the proceeds of the crops, after paying all necessary expenses'of the plantation and the clothing and education of my children, to be applied to the purchase of negroes and such other property as the wants of my farm may require. ' It is also my further wish and desire, that when my youngest child becomes of age, or marries, that an equal division of all my. effects, real and personal, be given to each of my children and wife, allowing .'her a child’s part of everything I shall then own.” His wife and brother are then requested to act as executors, and he “ enjoins on them the faithful care and protection of his children,” who were five in number. No division of the property was made, nor apportionment of the share of any [332] of the children, during the life of the widow; but since her death, the portion of one of them has been allotted. It does not appear by the petition that any of the children have become of age or married. The widow and brother did not qualify as executors, and letters of administration were granted to James W. Barnett, the appellee. The administrator and distributees demurred to the petition, and the demurrer Avas sustained and the petition dismissed; from which decree this appeal is taken. The first ground of demurrer is, that the interest left to the testator’s widow was entirely contingent, and to take effect only upon his youngest child coming of age or marrying; and as she died before that contingency took place, no vested interest in the estate passed to her by the will. And this raises the question whether, by the language of the will, any interest in the estate was intended to be bequeathed to the avidoAr at the testator’s death, to take effect in possession and enjoyment when the estate should be divided betAveen her and the children upon the contingency specified. We consider it clear from the several clauses of the will, that this is its true construction. First, all the property was to be kept in the hands of the executors, of whom the AvidoAV was one, until all the children became of age, — the plantation was to he carried on, and the children clothed and educated out of the proceeds; secondly, when the youngest child became of age or married, an equal division of all the -property Avas to he made between the widow and children, allowing her a child’s part; thirdly, each child was alloAved to withdraw his portion on coming of age. No express provision is made for the support of the Avidow whilst the property Avas to be kept together and before the final division. But it is plain that it was contemplated by the testator that she should receive such support; for she Avas charged with the care and management of the children, which, having no other means of support, she could not have done, unless the means of support had been supplied her from her husband’s estate. Being the natural guardian of the children, and being specially intrusted by him with their care, an intention that she must receive a support from his estate in the meantime, is clearly implied from her circumstances and situation. She therefore occupies the same situation as to interest in the property before the [333] final division, that the children occupied; and it is very clear, that they took a present interest at the testator’s death, to vest in possession upon the division; for it is provided that they are to be clothed and educated by means of the property. The provision of the will is, that upon the youngest child becoming of age or marrying, the estate was to be divided, — an “ equal division” was to be made between the widow and children, she receiving a child’s part. This language is equivalent to the words “to be paid” at a future day or upon a contingency; which are held to denote an intention to confer a present interest, but to be enjoyed upon the happening of the contingency. The spirit of the will clearly is, that an interest was to vest in the widow at the testator’s death; but as she was to have the charge of the children, it was not to be enjoyed by her in severalty, until the youngest child, who was committed to her care, became of age or married; and then she was to be “allowed” “a child’s part,” — thereby placing her upon the same footing as to her interest and share in the estate as the children. Any other construction than this would do violence to the language employed, and to what must be presumed to be the intention of the testator from the circumstances and'situation of the widow. And if the children took a vested interest at the death of the testator — as it is very clear they did — it is manifest from the language and spirit of the will, that the widow also took a vested interest at that time. Scott et al. v. James, 3 How. 307; Wade v. Grimes, 7 Ib. 425. The decree is, therefore, not maintainable on this ground of demurrer. The second ground of demurrer is, that it is not shown by the petition that the youngest child had become of age or married; and without that, that the widow was not entitled to possession of her interest in the estate. This would appear to he the manifest result of the provisions of the will, as above stated. The intention to defer the apportionment of the interest of the widow until the youngest child should become of age or marry, is too clearly stated in the will to be mistaken. That the keeping of the property together until one or the other of these events should take place,,was a trust intended by the testator to be performed specially by his executors named [334] in the will, 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, because the persons who were expected to manage the property did not take upon themselves the office of executors. For these conditions, as to the division of the property, are limitations upon the estate, which must attach to it, and cannot be disregarded, though the execution of the will was committed to a person not named in it. The children had the right to insist that the property should be kept together, according to the terms of the will; and for aught that is shown in the petition, there is nothing to justify the court in disregarding this purpose of the testator so plainly manifested. Certainly, the necessities of the ward of the petitioner, a person not within the contemplation of the testator, will not justify the court in making a division of the estate in opposition to the terms of the will, and in interfering with the rights and interests therein specified. Upon this point, the case is within the principle of Shipp v. Wheeless, 83 Miss. 646; and on this ground of demurrer the petition was properly dismissed. Decree affirmed.