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FEBRUARY 11, 1987





This case tests our confidence in ourselves as a free pluralistic people. It also tests our fidelity to the rule of law.

 On the one hand we are asked to decree that a charitable educational trust be administered in a racially nondiscriminatory manner, notwithstanding the testator's unmistakable language that the beneficiaries be "worthy" college students "who are of the caucassian [sicl race and . . . none other."

 On the other hand, the testator's heirs at law ask that we employ the law generally applicable to void or lapsed bequests and give them the trust assets which amount to almost $300,000.00, as the federal constitution prohibits state judicial enforcement of such a racially restrictive provision.

 We find the holographic will before us, properly understood, ambiguous. Because the court below proceeded without regard to extrinsic evidence, we cannot say with confidence that its decision striking the racially restrictive clause and otherwise upholding the trust accords the will its most just and reasonable reading consistent with the general plan divined from the will and our positive law. We reverse and remand.


 Allan R. Hobgood during his time on this earth was an only child and a bachelor. Hobgood died on January 31, 1968, in Lauderdale County, leaving a seven page holographic will he had written in December of 1962. Among other provisions, *fn1 the will created the T. H. Hobgood and Allie R. Hobgood

 Educational Trust, a testamentary charitable trust designed to provide financial aid to college students. The will expressly provided:

 After the death of my mother *fn2 my trustees shall, in their discretion, make loans to students of a state college or university of and operated by the State of Mississippi, who are found worthy and who are of the Caucassion [sic] race and to none other.

 Directions were then given regarding the amount that might be loaned to any one student, rates of interest and terms of repayment, and the like.

 On April 22, 1967, Hobgood made and executed a holographic codicil *fn3 to his will, not affecting the trust here in controversy except that its terms are reinforced:

 All of my original will not changed by this codicil are re-adopted and shall stand as amended by this codicil.

 After Hobgood's death and probate of his will, the named trustees, Attorney E. L. Snow and First Baptist Church of Meridian, declined to serve. The First United Bank of Mississippi (hereinafter' "Bank"), Defendant below and Appellee here, then stepped forward and notified the Chancery Court of Lauderdale County that it would serve as trustee and was so appointed on June 27, 1969. The court made no mention in the appointment order of what the Bank should do about the racially restrictive provisions in the trust.

 On July 29, 1969, the Bank, as trustee, filed with the Internal Revenue Service a tax exemption application for the trust and there declared Bank's intention to make loans from the trust to eligible beneficiaries without regard to "race, color or creed." The Bank advised neither the Chancery Court nor any surviving relative of Allan Hobgood of its decision in this regard. Apparently in 1973 the Bank considered the propriety of its determined course of administration of the trust, but no court approval was ever sought.

 The record reflects an August 4, 1970, court order construing the will, sought by the bank on February 25, 1970, a year after receiving the IRS exemption. This order does not address the matter of the racially restrictive beneficiary clause, nor did the Bank ask the court to do so. In its

 periodic accountings filed with the Chancery Court, the Bank never disclosed its nondiscrimination policy and practice.

 Allan R. Hobgood left surviving him no spouse, no children and no descendants of children. His parents, including his mother who is named in the will, and grandparents had predeceased him. All of his full blood uncles and aunts had predeceased him, but he was survived by Lucille Hamilton Hobgood Tinnin, an aunt of the half blood, and by first cousins of the whole blood.

 Charles A. Tinnin, Sr., Willard E. Tinnon, Edith Tinnin Simmons, and Miriam Tinnin Coleman (hereinafter collectively "Tinnins"), Plaintiffs below and Appellants here, are four children of Eddie Earl Tinnin and Hobgood's half-aunt, Lucille Hamilton Hobgood Tinnin, who was the sole heir at law of Allan Hobgood. These four Appellants are devisees of their late father, Eddie Earl Tinnin, who had been the sole beneficiary under Lucille Hamilton Hobgood Tinnin's will. See Appendix. The parties have stipulated that, should the trust fail, the trust assets should be delivered to these four parties. On December 31, 1982, the assets of the trust amounted to $292,796.49.

 The Tinnins only recently became aware of the situation at bar. On November 17, 1983, they commenced the present action in the Chancery Court of Lauderdale County. The Tinnins argued that the trust must terminate and the assets be distributed among them because the Bank's administration of the trust is contrary to the terms of Hobgood's will.

 On October 4, 1984, the Chancery Court released its opinion holding that

 the unlawful racial restriction, being only incidental, not integral, to the primary objective of the testator, must be set aside to enable the testator's principal purpose to be carried out.

 Relying upon the blended powers of cy pres and equitable approximation, the Chancery Court "sustain[ed] the trust, minus the discriminatory provision." On October 15, 1984, the Court entered final judgment dismissing the Tinnins' complaint. This appeal has followed.


 One of the great chapters in the evolution of the rights of man records the winning of the right of testation, the

 power by will to control from the grave what becomes of one's property. The power derives from legislative grant. Miss. Code Ann. 91-5-1 (1972). It is exercised by the competent adult as he sees fit, subject to few limitations, *fn4 and where the testator has acted in conformity with our empowering statutory rules, his will is valid. It becomes in theory almost sacred and in practice judicially enforceable, notwithstanding the testator's death and public or private inconvenience.

 A will is privately made law. Like all law, wills are inevitably open textured to one degree or another, notwithstanding the most skillful draftsmanship. Questions of meaning and effect abound. This is more often so with holographic wills. The ultimate authority for the construction of a will lies in the judicial department of the state. The exercise of that authority from time to time requires enforcement of directives not in so many words a part of an otherwise valid will, a task we perform according to certain familiar canons of construction.

 First and foremost, having in mind that the whole idea is to allow the testator to have his way regarding the disposition of his property, we seek and where possible give effect to the testator's intent. See In Re Estate of Granberry, 310 So. 2d 708, 711 (Miss. 1975), Hart v. First National Bank of Jackson, 233 Miss. 766, 103 So. 2d 406, 409 (1958). AS an example of the emphasis we place upon the testator's intent, Deposit Guaranty National Bank v. First National Bank of Jackson, 352 So. 2d 1324, 1326-27 (Miss. 1977) states:

 The paramount and controlling consideration is to ascertain and give effect to the intention of the testator. In arriving at this intention, the court is required to consider the entire instrument, sometimes said "from the four corners of the instrument." Where the instrument is susceptible of more than one construction, it is the duty of the ...

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