The Daily clarion. [volume] (Jackson, Miss.) 1866-1888, 1867-05-03

OCTOBER TERM, 1855,

s;W Barton, ct al. ,
No. I0,l56 Va
Richard NJ King, stal. }
Justice Harris ,delivered lie Opinio,
Of tie Court.
The record that VIM Is. Barton died in
1862 without children, leaving his wife Mar
tina, who has since inter-married with Rich
ard M. King and appellants his brother and
sisters, his heirs at law. That by his will
he bequeathed considerable portion of his
estate TO certain religious and charitable
associations, and "the balance after the pay.
ment Of his just debts, he gave to his WIFE
Tho bequests TO the religious and charita.
BILE associations, In the year 1863 In pro-
ceeding before tho Probate Court of Monroe
County, were adiudged and decrced to be
null and void. Which decree remained in
full force
AT the October Term 1865, of the Probate
Court of Monroe County, the appellants filed
their petition in said Probate Court; praying
for distribution OF the amount of said spe-
cial requests 30 decreed to be null apd void,
among the appellants. To this petition ap-
pellees demurred. The demurrer was s,ls-
tanned and petition dismissed. And the
cause Is now before this Court, ON appeal
from that judgment
The only question presented, is, whether
arts. So and So, p. 1923 of the Revised Code
Of this State, have made any change in the
common lawrule That in will of person
atty, n general residuary bequest carries not
only everything not disposed of, but every
thing that is ill-disposed of or that by lapse
or any other casualty, may fall into the resi-
dunn: While in devise of realty, d general
residuary clause, only carries the real
estate which is not disposed of. nor attempt
cd to be disposed of specifically by the devise,
1t is insisted on behalf OF the appellants,
that tho statute of this State above referred
to, declaring devises or bequests, in favor of
religious corporations societies, denomina-
tions or associations &c, shall be null and
void, and that the heirs at law or the dis
tributes, shall take the same as'though no
testanbntary disposition had been made,
changes the common law rule, so as to de-
feat, not only the illegal testamentary dispo-
sitiOn, but also the legal operation and effect
of the residuary clause at common law, and
vests the void devise or requests in the heirs
at law or distributes.
Such, was certainly, not the intention of
Arts 55 and Sc of the Code. This whole
section concerning Religious societies or
congregations" was designed simply, to pre-
vent tho evils resulting as well from the
efforts to accumulate vast estates in the
hands of the church, as from the accomplish
ment of such an object; and had no refer
ence to the power Of testamentary DISPOSE
ton.
Mr.. Tucker, in his commentaries on the
statute of uses and of trusts, vol lip 32,
says: "In the early times of the English
monarchy, that nation like every European
power, bowling to the supremacy of the Pope
and having an ecclesiastical establishment |
entirely under his control, the influence of
the clergy through the realm, became I'M
bounded and irresistible. To this their own |
learning and ability in no small degree, but |
the bigOtry aud ignorance of the people in a
much greater, contributed. Among their
most prominent vices, were rapacity and
40 diUerSG inter sc neaia;"
and even their sanctity where it was most
real, looked upon acquisition to the property
Of the church, by whatever means extorted
from tho people, as justified by the holy
object they had in view. Impelled, there
fore, by the various motives of sustaining the
luxuries Of monks and priests, or adding
to the splendor of the service of the church,
they accumulated vast estates in their cleri-
cal hands, availing themselves of super
stitiOus weakness and imbecile piety, to get
what they could from humble penitents
while they lived, and lowering round their
leathbeds like vultures and vampires, to
Ilefraud the unhappy heir of the patrimony
of his forefathcrs."
1t was doubtless against the possible re-
of the stale of things here alluded
TO, and lis Injurious effects upon the purity
Of the church. as well as public virtue gen
orally. that the act in question was directed,
But in the absence of any evidence Of such
we cannot suppose that it was
meant by these provisions of the Code, to
impose any further limitation upon the great
light of testamentary disposition, or to de-
eat the la,cful disposition of o testator's
will, by way of punishment for their at
;empted violation, beyond what is there
plainly expressed. 1t was not designed to
lestroy the will, but to give effect to all its
yalid dispositions, and in the event that the
Illegal dispositions were not otherwise dis.
,osed of Gas by residuary clause) then that
he heirs at law or distributes, should take
he same as though no testamentary dispo-
ition had been made.
We are referred to the cases of Reid VS..
tanning, 30th Miss, 308, Lusk vs. Lewis,
2 Miss, 297, and Lewis Admir- vs.. Luck, 35
Hiss, 401, cases arising under statute of
his State, prohibiting the emancipation of
laves by will, and providing that in case of
UGH devise or bequest, "the same shall de- .
cend to and be distributed amongst the
eirs at law, in the same manner as if such
estator had died interstate, &c. And 1T is
insisted that these cases sanction the con-
truction here commended for by counsel for
ppellant.
But in tho case of Garnett, admir-, vs..
owles and wife, decided at February Term ,
$50, and not yet reported, (p 60 of Goth !
Hiss. this point underwent direct adjudi- f
alton, and these cases are there reviewed,
nd it is held that the residuary legatee
akes in preference to the heir.
Let the deere of the Probate Court be af- '
rmed