Unknown County MsArchives Court.....Scott, Mr 1839
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Source: Reports Of Cases Argued And Determined In The High Court Of Errors And Appeals Of The State Of Mississippi
Written: 1839

Scott et al., Appellants, v. James et al.

pages 307-313

P. Pressler by his will directed that his property should be kept together in 
the hands of his executors, until his only daughter J. P. became of lawful age 
or married, then to be equally divided between his wife and daughter; but in 
case the daughter died without issue, then the will gave to the wife all the 
property, real and personal.

Pressler died in 1824, and in 1826 Mrs. Pressler intermarried with one James, 
and the appellees are the only issue of that marriage. Miss Pressler died in 
1832, at the age of fifteen. James died in 1831 and in 1832 his widow married 
Scott one of the appellants. In 1834 Mrs. Scott died, leaving the appellant 
the survivor. The appellees sought a recovery of a portion of the property 
left by Pressler to their mother; decree in their favor by the chancellor.

By the Court:—The wife of the testator had a vested 1egacy in the property, 
and her second husband, James, acquired a right to it by marriage.

James took possession of the property on his marriage with the widow, and 
claimed the same in virtue of the marriage: Held, to be a sufficient 
possession to vest the property in the husband, in as much as the property was 
by the will, to be kept together, until the daughter came of age or married.

The appellants inherited from their father two—thirds of their mother’s half 
of Pressler's property, which was equal to two-sixths, or one-third of the 
whole property.

APPEAL from the court of chancery.

Peter Pressler, after having made his will, died leaving his wife Elizabeth, 
and his daughter Jaily Ann, surviving him. He disposed of his property as 
follows: "And as touching such wordly estate wherewith it hath pleased God to 
bless me in this life, I devise and dispose of the same in the following 
manner and form, viz: It is my will and desire, that after my funeral expenses 
and all my lawful debts are paid and discharged, that the rest, residue and 
remainder of my property be kept together in the hands of my executors, until 
my only daughter, Jaily Ann Pressler, becomes of lawful age or marries, and it 
is then my will and desire, that whatever property they may be possessed of, 
may be equally divided between my loving wife Elizabeth Pressler, and my said 
daughter Jaily Ann Pressler, and in case my said daughter should die without 
issue, it is my will and desire that my wife, Elizabeth Pressler, enjoy all my 
property, real and personal, to herself and her heirs forever." He also 
appointed his wife executrix, and James Buford executor. Buford qualified, but 
the wife renounced. Pressler died in 1824, and in 1826 his wife Elizabeth 
intermarried with Robert James, who took and kept possession of the property 
until his death; and the appellees, Narcissa James and Margaret James, are the 
only issue of that marriage. James died in 1831, and in 1832, his widow 
intermarried with the appellant Scott, and died in October 1834, leaving Scott 
surviving.

In 1832, after the marriage of Scott with her mother, Miss Pressler died at 
the age of fifteen years. The appellees filed their bill for the purpose of 
recoveriug a portion of the property left by Pressler to their mother, and 
pray that the will may be construed.

The appellant in his answer admits all the facts stated in the bill, but 
denies the right of the cornplainants to any of the property; because he 
alleges that the disposition of the property by the will of Pressler, was 
contingent and did not take effect until the death of Miss Pressler, when her 
mother became entitled to the whole of it, which happening during his 
coverture, vested the right in him; and secondly, that even if this is not the 
true construction of the will, yet the complainants are not entitled to 
recover, because James, their father, never reduced his wife’s share of the 
property to possession.

The chancellor decreed in favor of the complainants below; appeal to this 
court.

Grayson, for the appellant.

1. It is urged that Robert James never had that possession of the interest to 
which the wife was entitled under the will as vested him with such a right as, 
upon his death, enabled his distributees to assert successfully a claim 
thereto.

Although the husband possess himself, as executor or administrator, or in 
right of his wife as such, of property, to a share of which his wife is 
entitled, this is not such a possession as to vest in him jure mariti; and if 
she dies before proper division is made, it will go to her heirs. Guardian of 
Ellens v. Hughes, 3 Dessausure, 161; Administrator of Byrne v. Stewart’s 
Administrator, 3 Dessausure, 148; 10 Yergor, 190; 2 Call’s Rep. 376.

A brother devised to his sister the residue of his estate. One of them 
married, and her husband died before the will was proved, or any division made 
of her brother’s estate. The husband not having reduced the estate to 
possession, his representatives could not take it, but it survived to the 
wife. Administrators of Harleston v. Executors of Lynch, 1 Dessausure, 244.

The case in 3 Dessaus. Rep. 155, Elms v. Hughes, is an authority directly 
opposed to the claim of the complainants. That was a case where one dying 
intestate, left a widow and children, a plantation and negroes. The widow 
administered on the estate of her deceased husband, and then married a second 
husband. She and her second husband remained on the plantation, and the 
negroes were in his possession and use. The second husband died, and his 
personal representatives set up a claim in opposition to the wife’s 
survivorship. The chancellor who decided the cause, said: "It is insisted that 
the right of the wife to a third part of the personal estate, was not a chose 
in action; it was a right to an undivided portion of negroes actually in 
possession of her that the writ of partition which was necessary, was merely 
to divide property in possession, and this was totally different from a chose 
in action." The answer given to this objection by the chancellor was, that "as 
a writ of partition was necessary to divide the personal estate to enable Mr. 
Elms to hold his wife’s share as husband, and as whenever a suit is necessary 
to establish or to give effect to a right, it is a right of action; and as Mr. 
Elms died before his wife, the right and the possession was not so vested in 
Mr. Elms, as husband, as to establish his property in the personal estate, but 
the same survived to his widow."

After the marriage of Robert James, the ancestor of the complainants, with 
Mrs. Pressler, to the period of his death, there was no time when he could 
claim any particular part of the property in question as his own, and say this 
is mine and that is not mine. His right was inchoate, to be determined and 
ascertained by partition; separating the interest of the infant daughter of 
Peter Pressler.

The principle here insisted on remains the same, though for a portion of the 
time of James’s marriage with the widow, there was no administration on the 
estate of Peter Pressler.

The infant daughter of Pressler being equally entitled to distribution, there 
was no mode by which James could obtain possession of the interest to which 
the wife was entitled, but by suing for partition. And when the husband is 
driven to a suit to obtain possession of his wife’s personal property, the 
authorities all regard such property to be a chose in action, which survives 
to the wife upon the death of the husband. The books hold but one language on 
this subject, and will not allow, without a violation of principle, the claim 
of the complainants to prevail.

Henderson and Boyd, contra.

We believe the merits of this case turn on the construction of Peter 
Pressler’s will.

We contend, by the will, that the testator disposed of all his estate—that he 
disposed of it as a bequest of present, and immediate investiture of title, 
and of immediate enjoyment of interest to the devisees jointly, deferring only 
a separate enjoyment, and division to the mother and daughter as devisees, 
until the daughter should arrive at lawful age or be married.

The defendant, Scott, in his answer, contends, that by the will there was no 
immediate investment of interest and title, but it was a devise over, to take 
effect on the happening of a specified event; though the will shows no 
particular estate created in the mean time for any one’s use, or to support 
the remainder over until the happening of the contingency, &c. 

The intention of the testator is the essential criterion in construing a will.

First, then, we urge, that the testator’s intention is manifest in the first 
clause of the will, to dispose of all his estate. His language is, "As 
touching such wordly estate wherewith it has pleased God to bless me in this 
life, I devise and dispose of the same, as follows," &c. 

"Such estate" as acquired in this life, is all the estate the testator could 
have had; and such he says, "I devise (I do devise— I do now devise) and 
dispose of the same." That is, he disposes of the same, and all such, and 
leaves nothing undisposed of. This evident intention of disposing of all his 
estate, is always resorted to as evidence of intention in construing other 
parts of the will, where an interpretation is contended for, which would 
regard a portion of the state as undevised. 1 Johns. Cha. Rep. 494; 2 
Dessausure, 32.

Now if construction obtain that the defendants contend for, then Pressler died 
intestate as to the usufruct of the estate, until the event happened on which 
the estate should vest. Because it is not devised to the executors in trust at 
all. It is but a power, a naked power, without title or interest, to keep 
together, &c. 4 Bibb, 307; 3 Bibb, 350; 2 Johns. Cha. Rep. 1, 527; 2 Nott & 
M’Cord, 688; Conn Rep. 106; 14 Johns. Rep, 527.

The interpretation asserted for the defendant, Scott, is absurd and 
unreasonable in this, viz: that if the estate did not vest a joint interest in 
presenti to the devisees, then the testator made no provision for the support 
of those to whom he devised all his estate, until the period when the daughter 
should become of age, &c., or, &c. 

To avoid results so unreasonable, and so opposed to the manifest objects the 
testator has proposed to accomplish by his will, a different construction must 
be sought for than suggested by the defendant, Scott, in his own behalf.

We urge, then, the affirmative presented in the bill, and insist, as the true 
construction, that the clause referred to was a devise in presenti of equal 
undivided moieties, in which, as of right, by such investment of title, the 
two devisees would enjoy equally the usufruct, till the time assigned for 
division.

The right of the devisees of the wil1, was a vested right in fee, with a 
contingent and shifting limitation over, and a deferred division of the 
bequest. 1 Johns. Cha. Rep. 497—8—3; 4 Peters’s Rep. 89, 91, 92; Amer. Ch. 
Dig. p. 534, sect. 43; p. 533, sect. 32.

It is not necessary the language of a will should be expressed in formal words 
of bequest, &c., but direction to "put them in possession of two thirds of 
what I may be worth," will carry the title. 1 Johns. Cha. Rep. 155.

If any question should arise as to the fact of Robert James, the complainant’s 
father, having had such possession of his wife’s undivided share under 
Pressler’s will, as would permit his marital rights to attach, and inheritance 
pass to his children, it is sufficient to say, that his possession is admitted 
by the answer, to have been, during coverture, in right and claim of husband, 
and as the property was not divisible under the will during his life, he 
possessed and enjoyed, in the fullest manner in which the condition of the 
property was susceptible. 1 Wash. Rep. 30; 6 Munford, 70; 2 Munford, 501; 2 
Call’s 491, or 412; 2 Kent, Comm. 143.

We conclude, therefore, the decree of the chancellor is correct, and should be 
affirmed.

Mr. Chief Justice SHARKEY delivered the opinion of the court.

The first ground of defenco must rest upon the true construction of the will, 
and the manifest intention of the testator must govern in giving that 
construction. There is nothing in the will which shows that the testator 
intended to give the legacies only on the happening of a contingency. The 
direction was confined to the possession, and not to the right of property. It 
was a mere direction to the executors that the property should be kept 
together for a certain time, previous to division. It is distinguishable from 
those cases of contingent legacies, which are to take effect only on the 
happening of the contingency. If he had left so much to his daughter on her 
coming of age, she could have had no right until she was of age, but a fair 
construction of the will gives a vested legacy to be divided in futuro. The 
testator professed in the outset to dispose of his property but as his child 
was then young, prudential considerations may have moved him to direct that it 
should be kept together until she became of age. It was no doubt the 
testator’s wish that his wife and daughter should remain together until the 
daughter should marry, and that object was most likely to be accomplished by 
directing that the property should be kept together. It is to be presumed that 
the testator did intend to make an immediate disposition of his property, and 
that none of it should lie dormant, and that nothing was to be postponed 
except the division. The case of Roberts’ Executor v. Brinker, 4 Dana’s Rep. 
570, is an authority in point. The case was very similar to this: the 
executors were directed to retain a portion of the estate until certain 
children became of age or married, and then to give it to them; and that was 
held to be a vested legacy. The court said, that a slight circumstance would 
be sufficient to show that a legacy was intended to be vested and not 
contingent. It was evidently the general intent of the testator to give an 
immediate interest in his property to his wife and daughter, and that intent 
being more important than a particular intent must prevail. 4 Kent’s Comm. 
534, note. Hence, we conclude that the wife had a vested legacy in the 
property, and that her second husband James, acquired a right to it by 
marriage.

But, it is said, that he never reduced the property to possession, and, 
therefore, that it survived to the wife and passed to her third husband Scott, 
on the marriage. It is charged in the bill, and admitted by the answer, that 
James took possession of the property on his marriage with Mrs. Pressler, and 
continued in possession until his death, and it is agreed between the counsel, 
by written agreement filed, that James claimed the property of his wife in his 
own right by virtue of the marriage. This was undoubtedly the highest act of 
ownership, and a sufficient possession to consummate his right. It was all 
that he could have done, because by the will the property was to be kept 
together and not divided until the daughter became of age or married. He was 
not, therefore, chargeable with laches, and although he was administrator, 
after the letters of the executor were revoked, yet his election to take in 
the capacity of legatee was fully shown; and even if such election had been 
clearly implied it would seem to be sufficient. Clearly it is sufficient when 
expressed and acted on. Wallace et ux. v. Talliaferro et ux., 2 Call, 376. The 
complainants, therefore, inherited from their father two-thirds of their 
mother’s half of Pressler's property, which was equal to two-sixths or one 
third of the whole.

The chancellor having so decreed, his decree must be affirmed.


Source: Reports of Cases Argued and Determined in the High Court of Errors and 
Appeals of the State of Mississippi, by Volney E. Howard, Reporter to the 
State; Vol. III; Containing the Cases for December Term, 1838, and January 
Term, 1839. NEW ORLEANS: E. JOHNS & CO., STATIONERS’ HALL, 1839.

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