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ESTATE OF ROXIE BUNCH, DECEASED, S. L. BAILEY AND JAMES BAILEY, EXECUTORS v. HEIRS OF ROXIE BUNCH

FEBRUARY 26, 1986

ESTATE OF ROXIE BUNCH, DECEASED, S. L. BAILEY AND JAMES BAILEY, EXECUTORS
v.
HEIRS OF ROXIE BUNCH



WALKER, P.J.; DAN M. LEE AND ROBERTSON, JJ.

ROBERTSON, JUSTICE, FOR THE COURT:

Roxie Bunch, late of Attala County, Mississippi, departed this life testate on May 25, 1983. Bunch left a holographic last will and testament dated April 13, 1971, which in pertinent part provides:

. . . I request if there is any cash left it will go to help one or two young men through medical school white and single. .

 The record reflects that the cash left within the meaning of the will has accumulated to a sum in excess of $113,000.00. In the face of a challenge by the heirs at law of Roxie Bunch, the Chancellor held the bequest" void because of uncertainty and indefiniteness "and provided that the estate pass under the laws of descent and distribution. Bunch's executors have appealed.

 Without question our law vests in persons such as Roxie Bunch the power to create a charitable testamentary trust for the purpose of providing financial aid to medical students. Bunch could effect such a goal, however, only if she complied with the enabling rules of that law. We answer the question whether she did so in the affirmative.

 We begin as always with our search for the dominant intent of the testatrix. See In Re Estate of Granberry, 310 So.2d 708, 711 (Miss.1975). Testatrix' intent - here to aid young persons through medical school - is a matter the language she employed puts beyond doubt. That intent having been divined, our task has merely begun, not ended, for we are charged affirmatively to assure that this dominant intent is given full effect.

 That Bunch's will gives us few details beyond her statement of dominant intent necessarily calls to mind that this state historically rejected the ancient crown prerogative labeled cy pres. Carter v. Berry, 243 Miss. 321, 375, 140 So.2d 843, 855 (1962). However, we have long recognized that the court may employ a doctrine labeled equitable approximation and supplement the provisions of private and charitable testamentary dispositions. Mississippi Childrens Home Society v. City of Jackson, 230 Miss. 546, 555, 93 So.2d 483, 486 (1957). Great passion and rhetoric have been expended regarding the matter, see Carter v. Berry, supra, and Natural Bank of Greece v. Savarika, 167 Miss. 571, 148 So. 648 (1933), the legitimate purpose of which was rejection of any judicial power to seize upon the deficiencies of the testator's language to change the general object of his charitable intention, an end no one suggests here.

 The extent to which the cy pres doctrine may have booked passage on the Mayflower is a matter that need not detain us. Whatever may once have been the law in this state, it is much too late to question the authority and responsibility of this Court to amend or supplement the terms of a will - whether its devise be private or charitable in nature - where such is necessary to effect the testator's dominant intent and avoid a clearly unintended consequence. See Pace v. Culpepper, 347 So.2d 1313, 1318 (Miss.1977) (" equitable approximation "); In Re Estate of Granberry, 310 So.2d 708, 711 (Miss.1975) (" all minor subordinate and technical rules of construction must yield to paramount intent "of testatrix); Citizens National Bank of Meridian v. Longshore, 304 So.2d 287, 290 (Miss.1974) (" cy pres "); Carter v. Berry, 243 Miss. 321, 136 So.2d 871, modified 243 So.2d 356, 376, 140 So.2d 843, 855 (1962) (" equitable approximation ").

 Our most instructive case is In Re Estate of Hall, 193 So.2d 587 (Miss.1967). In that case the decedent provided for the establishment of a charitable trust in the following language:

 Then proceeds go, as loan, to educate poor boys and girls as long as world stands - a Julia Weissinger Bailey Memorial fund - which in course of time will be big enough to keep a number in College yearly -.

 Estate of Hall, 193 So.2d at 591.

 Construing this language, this Court held that the trial court

 was correct in holding that a charitable trust was created by the language of the letter-wills for the education of poor girls and boys in a Christian ...


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