Davis v. Lowy
Davis v. Lowy
Opinion of the Court
On September 7,1949, Mrs. Martha Josephine Eldridge duly executed her last will and testament, the pertinent provisions of which are as follows:
“Item I. To my niece Emma Clair Lowy I leave my personal property and real estate as it stands in Enterprise, Clarke County, Miss.
“Item II. My money in First National Bank in Meridian, is to be used for a monument on my grave and to pay all outstanding bills such as doctors and nurses fees, and any and all debts which I may owe.
“Item III. I leave to my niece Willie Deane Davis whatever money may be left after all expenses are paid. ’ ’
On November 10,1951, Mrs. Eldridge conveyed to Mrs. Lowy by warranty deed her dwelling house and contents and the lot on which the house stands, reserving a life estate. The consideration named in this deed is $2,500.00 “the receipt of which is hereby acknowledged.”
Appellant makes three contentions with which we will deal. One is that the lower court erred in sustaining the demurrer, and in this connection it is argued that under the will Mrs. Eldridge left to Mrs. Lowy only her home and its contents and that that bequest lapsed or was adeemed upon the conveyance of that property to Mrs. Lowy, and that the alleged debt owing for the purchase price thereof constitutes money which should go to Mrs. Davis under Item III. We do not agree with appellant’s contention. The devise under Item I covered not only the home and its contents but it also covered personal property. The personal property was not restricted by the terms of the will to merely the contents of the home but was broad enough to cover the alleged debt herein sued for. The construction which appellant seeks as to Item I is not to be found in the will and for us to adopt it would necessitate our rewriting the will, which we are not authorized to do.
As to the contention that the indebtedness for the alleged balance due on the purchase price of the house and lot was money which would pass to Mrs. Davis under
It is also contended that the chancellor erred in interpreting the will without requiring all the heirs at law to be made parties to the suit. Because of the peculiar nature of the bill of complaint in this cause and the question raised by the demurrer it was necessary for the court to interpret Items I and III of the will as between Mrs. Davis and Mrs. Lowy, just as it has been necessary for us to do in passing upon the appeal as to whether the demurrer should or should not have been sustained, but the lower court’s and our interpretation is not under a
The other contention argued by appellant is that the amended bill is good as a bill of discovery regardless of everything else therein contained and that for this reason the demurrer should not have been sustained. There are two reasons why the bill is not good as a bill of discovery. The first is that it showed no cause of action in favor of complainant and was therefore merely a “fishing bill.” In Griffith’s Mississippi Chancery Practice, Section 429, it is said: “Although it may be true that the facts and the proof thereof may be within the exclusive possession and keeping of the defendant and although for that reason it may be difficult to state them in such a way as to disclose a meritorious cause of action, nevertheless, since discovery is merely a means to the end of making the necessary proof of a case for relief, the complainant must show himself entitled to relief against the party made defendant without which showing the bill would be only a fishing bill, and therefore not maintainable.” Here the bill wholly failed to show that complainant was entitled to any relief against the defendants, regardless of whether the consideration for the deed had been paid or not paid. The other reason why the bill is not good as a bill of discovery is that the
Affirmed.
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